Respondents Brief — Environmental Protection Agency, Petitioner v. Calumet Shreveport Refining, L.L.C., et al.

Supreme Court briefJan 21, 2025

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No. 23-1229

In the Supreme Court of the United States

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ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

v.

CALUMET SHREVEPORT REFINING, LLC, ET AL.,

Respondents

___________________

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

___________________

BRIEF FOR THE SMALL REFINERY

RESPONDENTS

___________________

LeAnn M. Johnson Koch

Alexandra M. Bromer

Jonathan G. Hardin

Aimee E. Ford

PERKINS COIE LLP

700 Thirteenth Street N.W.

Suite 800

Washington, DC 20005-3960

Eric Wolff

PERKINS COIE LLP

1201 3rd Avenue

Suite 4900

Seattle, WA 98101

Michael R. Huston

Counsel of Record

Karl J. Worsham

Jordan M. Buckwald

PERKINS COIE LLP

2525 E. Camelback Road

Suite 500

Phoenix, AZ 85016-4227

(202) 434-1630

mhuston@perkinscoie.com

Sopen Shah

PERKINS COIE LLP

33 E. Main Street, Suite 201

Madison, WI 53703

QUESTION PRESENTED

The Clean Air Act requires the Environmental Protection Agency (“EPA”) to grant an exemption from the Act’s

Renewable Fuel Standard (“RFS”) to a small refinery

when compliance with the RFS would cause the refinery

disproportionate economic hardship in a given year.

42 U.S.C. § 7545(o)(9)(B)(i). The six small refinery respondents here separately petitioned EPA for hardship

exemptions for particular compliance years. EPA concluded, after “consider[ing] each [respondent’s] individual

refinery information,” that each of the respondents was

not entitled to hardship relief and denied the petitions.

Pet.App.14a-15a. Respondents then petitioned for judicial

review as permitted by the Clean Air Act, 42 U.S.C.

§ 7607(b)(1). The question presented is:

Whether an EPA decision denying a small refinery’s

RFS hardship petition is a “locally or regionally applicable” action, such that a court challenge to that action is

properly venued in a regional circuit court, or is instead a

“nationally applicable” action or an action “based on a

determination of nationwide scope or effect” that must be

challenged only in the U.S. Court of Appeals for the D.C.

Circuit. 42 U.S.C. § 7607(b)(1).

ii

TABLE OF CONTENTS

Statutory Provision Involved ............................................. 1

Introduction ......................................................................... 3

Statement ............................................................................. 6

A. Statutory and regulatory background .................. 6

1. Venue for petitions for review under the

Clean Air Act ..................................................... 6

2. Small-refinery hardship petitions under

the Act’s RFS Program .................................. 10

B. The present controversy ...................................... 14

Summary of Argument ..................................................... 19

Argument ........................................................................... 22

A. The Fifth Circuit’s decision was correct. ............ 24

1. The “final action[s]” are EPA’s denials of

each small-refinery’s hardship petition. ....... 24

2. EPA’s denials of the hardship petitions are

“locally or regionally applicable” actions. ..... 28

3. EPA’s actions were based on local

economic facts, not any nationwide

statutory determination. ................................ 31

B. EPA’s arguments seeking D.C. Circuit review

fail............................................................................ 35

1. EPA gets the “action” wrong. ........................ 36

2. EPA fails to establish that the hardship

decisions are nationally applicable. ............... 38

3. The hardship decisions were not based

on a determination of nationwide scope

or effect............................................................. 43

Conclusion .......................................................................... 51

iii

Appendix – 42 U.S.C. § 7545(o)........................................ 1a

Appendix – 42 U.S.C. § 7607(b) ..................................... 27a

Appendix – 42 U.S.C. § 1857h-5 (1970) ......................... 29a

Appendix – 42 U.S.C. § 7607 (1982) .............................. 30a

iv

TABLE OF AUTHORITIES

Pages

CASES

American Rd. & Transp. Builders Ass’n v. EPA,

705 F.3d 453 (D.C. Cir. 2013) ............................ 7, 28, 39

Americans for Clean Energy v. EPA,

864 F.3d 691 (D.C. Cir. 2017) ...................................... 30

ATK Launch Sys., Inc. v. EPA,

651 F.3d 1194 (10th Cir. 2011) ................................ 8, 28

Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204 (1988) ....................................................... 15

Clean Water Action Council of Ne. Wis., Inc. v. EPA,

765 F.3d 749 (7th Cir. 2014) ........................................ 29

Cuomo v. Clearing House Ass’n, L.L.C.,

557 U.S. 519 (2009) ....................................................... 44

Dalton Trucking, Inc. v. EPA,

808 F.3d 875 (D.C. Cir. 2015) ................................ 29, 31

Department of Homeland Sec. v. Regents of the

Univ. of California,

591 U.S. 1 (2020) ........................................................... 40

Ergon-West Virginia, Inc. v. EPA,

896 F.3d 600 (4th Cir. 2018) ........................................ 14

Ergon-West Virginia, Inc. v. EPA,

980 F.3d 403 (4th Cir. 2020) ........................................ 14

Fischer v. United States,

603 U.S. 480 (2024) ......................................................... 8

HollyFrontier Cheyenne Refin., LLC v.

Renewable Fuels Ass’n,

594 U.S. 382 (2021) ............................................ 11-12, 14

v

Kentucky v. EPA,

123 F.4th 447 (6th Cir. 2024) ............. 6, 8, 10, 25, 27-29,

32, 36-38, 40

Kentucky v. EPA,

Nos. 23-3216/23-3225, 2023 WL 11871967

(6th Cir. July 25, 2023) ........................................... 24, 31

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) ................................................. 32, 36

Mohamad v. Palestinian Auth.,

566 U.S. 449 (2012) ....................................................... 32

NAACP v. Federal Power Comm’n,

425 U.S. 662 (1976) ....................................................... 37

National Env’t Dev. Ass’ns Clean Air Project v. EPA,

891 F.3d. 1041 (D.C. Cir. 2018) ..................................... 5

National Fed’n of Indep. Bus. v. Dep’t of Lab.,

Occupational Safety & Health Admin.,

595 U.S. 109 (2022) ....................................................... 44

Niz-Chavez v. Garland,

593 U.S. 155 (2021) ....................................................... 49

NRDC v. EPA,

475 F.2d 968 (D.C. Cir. 1973) ........................................ 9

Renewable Fuels Ass’n v. EPA,

948 F.3d 1206 (10th Cir. 2020) .................................... 14

Sierra Club v. EPA,

47 F.4th 738 (D.C. Cir. 2022) ............................ 10, 31-32

Sinclair Wyoming Refin. Co. LLC v. EPA,

114 F.4th 693 (D.C. Cir. 2024) ............................... 11, 18

Sinclair Wyoming Refin. Co. v. EPA,

887 F.3d 986 (10th Cir. 2017) ...................................... 14

vi

Texas v. EPA,

829 F.3d 405 (5th Cir. 2016) ................ 10, 24, 29, 31, 32

Texas v. EPA,

983 F.3d 826 (5th Cir. 2020) ........................................ 10

Texas v. EPA,

No. 10-60961, 2011 WL 710598 (5th Cir.

Feb. 24, 2011) ................................................................ 28

Texas v. EPA,

No. 23-60069, 2023 WL 7204840

(5th Cir. May 1, 2023)............................ 10, 24-25, 30, 36

Travis v. United States,

364 U.S. 631 (1961) ....................................................... 42

United States v. Bass,

404 U.S. 336 (1971) ....................................................... 42

United States v. Houlihan,

92 F.3d 1271 (1st Cir. 1996) ......................................... 40

West Virginia Chamber of Commerce v. Browner,

166 F.3d 336 (4th Cir. 1998) ........................................ 30

West Virginia v. EPA,

90 F.4th 323 (4th Cir. 2024) ............................. 10, 39, 44

STATUTES

42 U.S.C. Ch. 85.............................................................. 6, 32

42 U.S.C. § 1857c-5(e) (1973) ............................................... 9

42 U.S.C. § 1857c-10(c)(2) .................................................... 2

42 U.S.C. § 7410 ................................................................ 2, 7

42 U.S.C. § 7411 ............................................................ 1, 2, 6

42 U.S.C. § 7412 ............................................................ 1, 2, 6

42 U.S.C. § 7413 .................................................................... 2

vii

42 U.S.C. § 7414(a)(3)........................................................... 2

42 U.S.C. § 7419 .................................................................... 2

42 U.S.C. § 7420 .................................................................... 2

42 U.S.C. § 7521 .................................................................... 1

42 U.S.C. § 7545 .................................................................... 2

42 U.S.C. § 7545(o) ............................................................. 11

42 U.S.C. § 7545(o)(7)......................................................... 43

42 U.S.C. § 7545(o)(9)................................................... 38, 43

42 U.S.C. § 7545(o)(9)(A) ............................................... 3, 12

42 U.S.C. § 7545(o)(9)(A)(i) ............................................... 26

42 U.S.C. § 7545(o)(9)(A)(ii) ............................ 13, 26, 33, 43

42 U.S.C. § 7545(o)(9)(B) ......... 3-4, 22, 25-26, 33, 37, 43, 48

42 U.S.C. § 7545(o)(9)(B)(i) ....................... 12, 13, 25, 26, 34

42 U.S.C. § 7545(o)(9)(B)(ii) ........................................ 13, 25

42 U.S.C. § 7545(o)(9)(B)(iii) ........................... 13, 25, 26, 40

42 U.S.C. § 7571 .................................................................... 2

42 U.S.C. § 7607(b)(1)

......................................................3-4, 6-10, 17, 19, 21-25,

28-32, 34-37, 40-43, 45-50

Clean Air Act Amendments of 1977, Pub. L. No. 95-95,

91 Stat. 685 (Aug. 7, 1977) ............................................. 6

REGULATIONS

40 C.F.R. § 80.1406............................................................. 11

40 C.F.R. § 80.1426............................................................. 11

40 C.F.R. § 80.1427............................................................. 11

viii

40 C.F.R. § 80.1428............................................................. 11

40 C.F.R. § 80.1429............................................................. 11

40 C.F.R. § 80.1441(e)(2) ................................................... 13

41 Fed. Reg. 56,767 (Dec. 30, 1976) ................................ 8, 9

72 Fed. Reg. 23,900 (May 1, 2007) .................................... 12

75 Fed. Reg. 14,670 (Mar. 26, 2010) ................................. 12

86 Fed. Reg. 70,999 (Dec. 14, 2021) .................................. 15

OTHER AUTHORITIES

U.S. Dep’t of Energy, Small Refinery Exemption Study:

An Investigation into Disproportionate Economic

Hardship (March 2011) ................................................ 12

THE OXFORD ENGLISH DICTIONARY (1971) .............. 40, 41

S. Rep. No. 1196, 91st Cong., 2d Sess. 41 (1970)............. 41

U.S. Gov’t Accountability Office, Renewable Fuel

Standard: Actions Needed to Improve DecisionMaking in the Small Refinery Exemption Program,

GAO23104273 (Nov. 2022) ........................................... 13

In the Supreme Court of the United States

_______________

No. 23-1229

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

v.

CALUMET SHREVEPORT REFINING, LLC, ET AL.,

Respondents

___________________

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

___________________

BRIEF FOR THE SMALL REFINERY

RESPONDENTS

____________

STATUTORY PROVISION INVOLVED

The Clean Air Act provides at 42 U.S.C. § 7607(b), in

relevant part, that:

Administrative proceedings and judicial review

(b) Judicial review

(1) A petition for review of action of the Administrator [of the Environmental Protection Agency] in promulgating any national primary or secondary ambient air

quality standard, any emission standard or requirement

under section 7412 of this title, any standard of performance or requirement under section 7411 of this title,[ ]

any standard under section 7521 of this title (other than a

standard required to be prescribed under section

7521(b)(1) of this title), any determination under section

7521(b)(5) of this title, any control or prohibition under

2

section 7545 of this title, any standard under section 7571

of this title, any rule issued under section 7413, 7419, or

under section 7420 of this title, or any other nationally

applicable regulations promulgated, or final action taken,

by the Administrator under this chapter may be filed only

in the United States Court of Appeals for the District of

Columbia. A petition for review of the Administrator’s

action in approving or promulgating any implementation

plan under section 7410 of this title or section 7411(d) of

this title, any order under section 7411(j) of this title,

under section 7412 of this title, under section 7419 of this

title, or under section 7420 of this title, or his action under

section 1857c-10(c)(2)(A), (B), or (C) of this title (as in

effect before August 7, 1977) or under regulations thereunder, or revising regulations for enhanced monitoring

and compliance certification programs under section

7414(a)(3) of this title, or any other final action of the

Administrator under this chapter (including any denial or

disapproval by the Administrator under subchapter I)

which is locally or regionally applicable may be filed only

in the United States Court of Appeals for the appropriate

circuit. Notwithstanding the preceding sentence a petition

for review of any action referred to in such sentence may

be filed only in the United States Court of Appeals for the

District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such

action the Administrator finds and publishes that such

action is based on such a determination.

*

This and other pertinent statutory provisions are

reprinted in the appendix to this brief. App.1a-31a, infra.

3

INTRODUCTION

The Clean Air Act (“CAA” or “Act”) assigns the venue

for a petition for judicial review of final agency action by

asking whether the challenged action is “nationally applicable” (reviewed by the D.C. Circuit) or “locally or regionally applicable” (reviewed by the regional circuit courts).

42 U.S.C. § 7607(b)(1). 1 Determining venue thus requires

focusing with precision on the “action” that the Environmental Protection Agency (“EPA”) was authorized by the

CAA to take: the “final action taken … under this chapter.” Ibid. (“[T]his chapter” is the CAA.)

Once the final action is properly identified, the venue

provision is straightforward. Most EPA actions under the

Act are rulemakings or similar actions that apply throughout the entire nation, or else are adjudications or similar

decisions involving individual States or regulated entities.

The former go to the D.C. Circuit, the latter to the regional circuit courts—save only in the exceptional circumstance where the CAA’s text directs EPA to base a local

action on a “determination” about the whole nation.

Applying those statutory instructions here shows why

the Fifth Circuit below got the venue question right. This

case concerns a type of statutory forbearance from the

CAA’s Renewable Fuel Standard (“RFS”) that affects

only small refineries. Small refineries like respondents

may petition EPA for an exemption from the RFS obligation by showing that they will face disproportionate economic hardship from compliance with the RFS in a given

year. § 7545(o)(9)(A)-(B). Until a presidential administration change in 2021, EPA had repeatedly acknowledged

that its decisions on small refineries’ hardship petitions

1

All statutory citations are to Title 42 of the United States

Code.

4

are quintessential locally applicable actions that Section

7607(b)(1) refers to the regional circuits. That’s because

each EPA “final action” on a hardship-exemption petition

adjudicates the rights of only one small refinery located in

one place, and the “chapter” (the CAA) requires those actions to be based on consideration of each small refinery’s

own economic hardship. § 7607(b)(1); see § 7545(o)(9)(B).

EPA changed its position on venue and started deliberately attempting to re-direct judicial challenges to its

preferred court, the D.C. Circuit, only after it suffered a

string of defeats in regional circuit courts that found EPA

had wrongly decided hardship petitions. EPA now argues

that, because it published its decisions on multiple small

refineries’ pending hardship petitions bundled together in

two explanation documents (denying every pending petition), it was able to convert what it has long agreed were

locally applicable final actions into just two nationally

applicable actions. EPA was transparent about its goal of

making the D.C. Circuit the only court allowed to review

its latest denial decisions.

EPA’s new venue position is contrary to the CAA’s

text, and the Fifth Circuit correctly rejected it. EPA was

able to produce the bundled decisions only by ignoring the

statutory command to decide hardship petitions individually as they come in. More fundamentally, the two explanation documents were bundles of individual final actions

under the CAA. EPA’s choice about how to publish its

decisions cannot change the nature of the “final action

taken … under this chapter,” which is what matters for

venue. § 7607(b)(1). It is the statutory text—“th[e] chapter”—that establishes what actions EPA is permitted to

take. And here, every relevant provision of the chapter

confirms that EPA was required to produce individualized

5

final actions based on individual petitioning refineries’

economic circumstances.

In fact, that is just what EPA did. EPA itself has

stated that it denied all of the small-refinery respondents’

RFS hardship petitions because it “determin[ed],” after

“consider[ing] each [refinery’s] individual refinery information,” that each respondent was not experiencing disproportionate economic hardship. Pet.App.14a-15a. EPA

concluded, after examining each respondent’s evidence,

that each ostensibly passes on 100% of its RFS compliance

costs in the price of the fuel it sells. Those were the conclusions on which EPA based its decisions to deny hardship relief to these small-refinery respondents, each of

which received an individualized explanation from EPA

analyzing its own economic evidence.

Multiple courts of appeals (including the D.C. Circuit)

have since held that EPA’s merits reasoning about the

small refineries’ ability to pass through their RFS compliance costs was arbitrary and capricious and unsupported

by the record evidence. But the venue issue before this

Court is simpler. To borrow Judge Silberman’s description of the venue provision that EPA endorses (U.S. Br.

18): EPA’s answer to whether a petitioning small refinery

like Calumet Shreveport located in Shreveport, Louisiana, does or does not successfully pass through its RFS

compliance costs in its fuel sales hardly qualifies as a “regulatory issue[ ] of national importance” that belongs in the

D.C. Circuit. National Env’t Dev. Ass’ns Clean Air Project v. EPA, 891 F.3d. 1041, 1054 (D.C. Cir. 2018) (Silberman, J., concurring).

The Fifth Circuit’s judgment should be affirmed.

6

STATEMENT

A. Statutory and regulatory background

1. Venue for petitions for review under the Clean

Air Act

Section 7607(b)(1) governs “[j]udicial review” of “petitions for review” of EPA’s “final action[s] under this chapter,” i.e., under the Clean Air Act. See Kentucky v. EPA,

123 F.4th 447, 458, 461 (6th Cir. 2024); 42 U.S.C. Ch. 85,

Codification Note (“this chapter” is the CAA). As relevant

here, Section 7607(b)(1)’s venue instructions consist of

three “lengthy” sentences. Kentucky, 123 F.4th at 458.

a. The first sentence describes the proper venue for

challenging EPA final actions that apply to the nation as

a whole. That sentence begins by enumerating several

CAA provisions authorizing EPA to take national actions.

For example, when EPA promulgates a national primary

or secondary air quality standard under Section 7412, or

sets a standard of performance for all new stationary

sources of emissions under Section 7411, challenges to

those national actions “may be filed only in” the D.C. Circuit. § 7607(b)(1). In 1977, Congress amended the venue

provision to add a catchall phrase to that sentence: In

addition to the enumerated national actions, “any other

nationally applicable regulations promulgated, or final

action taken, by the Administrator under this chapter”

are reviewable only in the D.C. Circuit. Ibid.; see Clean

Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat.

685 (Aug. 7, 1977). 2

2

For ease of reference, the 1970 and 1982 versions of the

venue provision (the latter including the 1977 amendments) are

provided at App., infra, 29a and 30a, respectively.

7

b. The second sentence follows the same basic structure but for non-national final agency actions. It first enumerates CAA provisions authorizing EPA to take actions

that apply to less than the whole country, and it makes

those actions reviewable only in regional circuit courts.

For example, when EPA approves or promulgates a state

implementation plan under Sections 7410 or 7411(d), a

challenge to that action “may be filed only in the United

States Court of Appeals for the appropriate circuit.”

§ 7607(b)(1). The second sentence of Section 7607(b)(1),

like the first, also includes a catchall phrase added by the

same 1977 amendment: “any other final action of the

Administrator under this chapter … which is locally or

regionally applicable” is reviewable only in “the appropriate circuit” court. Ibid.

Identifying which circuit court is “appropriate” for

reviewing local or regional final action is usually easy.

That’s because for these EPA actions, the relevant substantive CAA provision makes it clear that the action

affects particular regulated facilities or States, each of

which is governed by a regional circuit court. When EPA

promulgates a regional action that happens to touch more

than one federal circuit—for example, approving or rejecting an implementation plan for the Metropolitan Kansas City air-quality-control region—there may be more

than one appropriate circuit.

c. The courts of appeals and EPA agree that, to

assess the national vs. local applicability of an EPA action

for purposes of Section 7607(b)(1), courts look only “to the

face” of the action as that action is authorized by the

CAA—not to the challenger’s arguments in the petition

for review, and not to the effects of the action or the reasoning within it. American Rd. & Transp. Builders Ass’n

v. EPA, 705 F.3d 453, 456 (D.C. Cir. 2013) (Kavanaugh,

8

J.); see also, e.g., ATK Launch Sys., Inc. v. EPA, 651 F.3d

1194, 1197 (10th Cir. 2011); U.S. Br. 20 (invoking “the face

of ” the actions). That focus on what action EPA took follows from the statutory instruction to look to the “final action … under this chapter” to resolve venue. § 7607(b)(1).

The textual structure of Section 7607(b)(1)’s first two

sentences—enumerated lists of CAA actions followed by

catchall phrases—indicates that courts should apply the

catchall phrases by reasoning by analogy to the enumerated provisions. The catchall phrases use a “collective

term”—any other final action—“at the end of a list of specific items,” so the collective term is “controlled and

defined by reference to the specific classes that precede

it.” Fischer v. United States, 603 U.S. 480, 487 (2024)

(ejusdem generis canon) (cleaned up); see Kentucky, 123

F.4th at 460 (using ejusdem generis to interpret Section

7607(b)(1)). Thus, an EPA final action pursuant to an

unenumerated CAA provision is “nationally applicable” if

it applies to the whole nation like the enumerated actions

in the first sentence of Section 7607(b)(1) do. And a final

action is “locally or regionally applicable” if it applies to

less than the whole nation, as the enumerated CAA

actions in the second sentence do. Ibid.

d. The third sentence contemplates a narrow exception for certain rare EPA actions that, though locally or

regionally applicable, are “based on a determination of

nationwide scope or effect.” § 7607(b)(1). That sentence

was added by the same 1977 amendment referenced

above, prompted by a recommendation from the Administrative Conference of the United States that included a

statement from EPA General Counsel William Frick. See

41 Fed. Reg. 56,767 (Dec. 30, 1976).

Frick had identified a circumstance where the thirdsentence exception was needed. 41 Fed. Reg. at 56,768-

9

56,769. Under a particular CAA provision at the time

(since repealed), EPA could grant extensions of a State’s

attainment date for certain national ambient air quality

standards—actions that were locally applicable—only “if

after review ... the Administrator determine[d] that,”

among other things, regulated emission sources were

“unable to comply with the [applicable] requirements …

because the necessary technology or other alternatives

are not available or will not be available soon enough to

permit compliance.” 42 U.S.C. § 1857c-5(e) (1973) (emphasis added); see NRDC v. EPA, 475 F.2d 968 (D.C. Cir.

1973) (explaining the available-technology determination

and corresponding extension action).

Frick’s statement, which the government agrees (U.S.

Br. 37) was the genesis of the third sentence in Section 7607(b)(1), illustrates how that exception works: If

the statutory text requires a particular EPA action to be

based on a statutory “determination” about a circumstance equally affecting the whole nation, then a challenge to that action should go to the D.C. Circuit.

Congress provided that “if ” a locally applicable action “is

based on a determination of nationwide scope or effect and

if in taking such action [EPA] finds and publishes that

such action is based on such a determination,” then the

proper venue is the D.C. Circuit. § 7607(b)(1).

The third sentence thus establishes two independent

requirements for this exception: the action must actually

be based on a determination of nationwide scope or effect,

and EPA must publish a finding that it is so based. Accord

U.S. Br. 30. Whether EPA publishes that finding is the

only part of Section 7607(b)(1) that contemplates any discretion for the agency. The text is thus “clear” that “[t]he

court—not EPA—determines both the scope of an

action’s applicability and whether it was based on a deter-

10

mination of nationwide scope or effect.” Texas v. EPA

(“Texas 2020”), 983 F.3d 826, 833 (5th Cir. 2020); accord

Sierra Club v. EPA, 47 F.4th 738, 746 (D.C. Cir. 2022).

e. In sum, the CAA allocates venue for regulatory

challenges depending on the nature of the “final action”

under review: If EPA’s “final action … under this chapter” is “nationally applicable,” then the proper venue is

the D.C. Circuit. § 7607(b)(1). If EPA’s “final action …

under this chapter” is “locally or regionally applicable,”

then the proper venue is presumptively a regional circuit

court. Ibid.; see Texas v. EPA (“Texas 2016”), 829 F.3d

405, 419, 424 (5th Cir. 2016). If EPA can demonstrate both

that a locally applicable action is “based on a determination of nationwide scope or effect”—that is, a textually

called for determination reaching all the nation’s regulated parties equally—“and” that EPA “f [ound] and publishe[d] that such action is based on such a determination,”

then venue is proper in the D.C. Circuit. § 7607(b)(1).

The first question for venue, then, is: What is the “final

action … under this chapter” that EPA was authorized to

take? To answer that question, courts “look primarily to

the text of the statute,” specifically to the relevant CAA

provision that is “the legal source of [EPA’s] authority to

take the challenged action[ ].” Texas v. EPA (“Texas

2023”), No. 23-60069, 2023 WL 7204840, at *4 (5th Cir.

May 1, 2023); see Kentucky, 123 F.4th at 460-462; West

Virginia v. EPA, 90 F.4th 323, 329 (4th Cir. 2024).

2. Small-refinery hardship petitions under the

Act’s RFS Program

a. The CAA’s RFS program requires that increasing

amounts of renewable fuels be blended into the transportation fuel (gasoline and diesel) sold in the United States.

§ 7545(o)(2)(A)(i), (B)(i)(I)-(IV); see HollyFrontier Cheyenne Refin., LLC v. Renewable Fuels Ass’n, 594 U.S. 382,

11

385-387 (2021). EPA first sets annual renewable fuel percentage standards across the industry. § 7545(o)(3). Obligated parties—refiners and importers of transportation

fuel—use those standards to learn their own annual volume obligations for each renewable-fuel category. See 40

C.F.R. § 80.1406.

Obligated parties comply with their annual RFS obligations by “retiring” credits called renewable identification numbers (“RINs”). 40 C.F.R. § 80.1427. A RIN is

generated when renewable fuel (ethanol, for example) is

manufactured. Id. § 80.1426. The RIN remains attached

to the volume of renewable fuel until it is blended into

transportation fuel, at which point the RIN is “separated.” Id. §§ 80.1428, 80.1429. RINs have a limited life;

they can be used for compliance only in the year they are

generated or the next compliance year. § 7545(o)(5)(C).

Obligated parties demonstrate RFS compliance by securing sufficient separated RINs, either by generating RINs

through blending renewable fuels or by purchasing RINs

from others that blend. § 7545(o)(5)(B).

b. “The RFS program reflects a carefully crafted legislative bargain to promote renewable fuels, but also to

provide an exemption mechanism for small refineries.”

Sinclair Wyoming Refin. Co. LLC v. EPA, 114 F.4th 693,

711 (D.C. Cir. 2024). A “small refinery” has an average

aggregate daily crude oil throughput for a calendar year

of 75,000 barrels or less. § 7545(o)(1)(K). Congress recognized that “escalating [RFS] obligations could work special burdens on small refineries,” many of which “lack the

inherent scale advantages of large refineries” and are limited in their ability to blend renewable fuels—or are unable to blend at all. HollyFrontier, 594 U.S. at 386 (cleaned

up). Congress also understood that small refineries are

12

essential to the nation’s energy supply and often “a major

source of jobs in rural communities.” Id. at 386-387.

EPA has acknowledged that “[m]any” small refineries

“do not have access to renewable fuels or the ability to

blend them, and so must use credits to comply” with the

RFS. 72 Fed. Reg. 23,900, 23,904 (May 1, 2007). Small

refineries that cannot separate enough RINs through

blending are forced to buy RINs on an unregulated secondary market where prices can fluctuate wildly. See 75

Fed. Reg. 14,670, 14,722 (Mar. 26, 2010) (explaining RIN

spot markets); HollyFrontier, 594 U.S. at 398 (noting one

year where RIN prices “shot up by as much as 100%”).

Congress initially exempted all small refineries from

the RFS until 2011, and it directed the U.S. Department

of Energy (“DOE”) to study whether RFS compliance

would impose disproportionate economic hardship on

small refineries. § 7545(o)(9)(A). DOE completed that

study in 2011, finding that small refineries “have particular obstacles that would make compliance more costly

than those of large integrated companies.” DOE, Small

Refinery Exemption Study: An Investigation into Disproportionate Economic Hardship 3, 32, 37 (March 2011)

(“2011 DOE Study”). 3 DOE also recognized that small

refineries’ hardship would grow increasingly acute as

renewable-fuel blending mandates increased. Id. at 17-18.

To avoid damaging small refineries, Congress created

a permanent safety valve that allows a small refinery to

petition EPA for an exemption from its annual RFS obligation “for the reason of disproportionate economic hardship.” § 7545(o)(9)(B)(i). The Act provides that “[a] small

refinery may at any time petition the Administrator” for

3

https://www.epa.gov/sites/default/files/2016-12/documents/small-refinery-exempt-study.pdf.

13

an exemption—and thus requires each small refinery to

petition separately for hardship relief. Ibid. (emphasis

added). Each granted petition frees only one small refinery from its RFS obligation for the year(s) involved in the

petition, based on that refinery’s economic circumstances.

§ 7545(o)(9)(B)(i)-(ii); 40 C.F.R. § 80.1441(e)(2). EPA must

decide each small-refinery hardship petition in “consultation” with DOE after “consider[ing] the findings” of DOE’s

2011 small-refinery study along with “other economic factors.” § 7545(o)(9)(A)-(B).

Congress required EPA to decide any hardship

petition submitted by a small refinery “not later than 90

days after” receipt, because a small refinery cannot plan

adequately for RFS compliance until it knows whether it

has an obligation. § 7545(o)(9)(B)(iii). But EPA has failed

to meet that deadline for almost 90 percent of hardship

petitions submitted since 2013, causing significant uncertainty for small refineries. See U.S. Government Accountability Office, Renewable Fuel Standard: Actions Needed

to Improve Decision-Making in the Small Refinery Exemption Program 20, GAO23104273 (Nov. 2022). 4

c. When EPA has denied small-refinery hardship

petitions, the petitioners sometimes sought judicial review.

Regarding venue for those challenges, EPA repeatedly

acknowledged that RFS hardship-exemption decisions

are “quintessentially local action[s]” that must be reviewed

in the regional circuit courts. E.g., EPA Motion to Dismiss

18, Advanced Biofuels Ass’n v. EPA, No. 18-1115, Dkt.

1740614 (D.C. Cir. July 13, 2018).

On the merits of those challenges, EPA suffered a

streak of losses where circuit courts vacated its hardship

decisions. See Sinclair Wyoming Refin. Co. v. EPA, 887

4

https://www.gao.gov/products/gao-23-104273.

14

F.3d 986 (10th Cir. 2017); Ergon-West Virginia, Inc. v.

EPA, 896 F.3d 600 (4th Cir. 2018); Renewable Fuels Ass’n

v. EPA, 948 F.3d 1206 (10th Cir. 2020); Ergon-West Virginia, Inc. v. EPA, 980 F.3d 403 (4th Cir. 2020). Frustrated by its repeated defeats in the regional circuits, and

after a 2021 change in presidential administration, EPA

began attempting to eliminate small-refinery hardship

relief altogether. EPA first abandoned defense of its own

prior decisions granting hardship relief and began newly

insisting that a small refinery cannot receive relief unless

it had received an exemption in every prior compliance

year. This Court rejected that new position in HollyFrontier. 594 U.S. at 396-397.

When that effort failed, EPA went back to the drawing

board intent on rejecting hardship relief and avoiding

judicial review anywhere other than the D.C. Circuit.

B. The present controversy

1. The small-refinery respondents here have repeatedly received RFS hardship relief from EPA in the past,

because each of them faces structural disadvantages that

make RFS compliance disproportionately burdensome.

The respondents petitioned EPA again for hardship relief

for some or all of the compliance years 2017 through 2021.

Pet.App.19a nn.26-27. EPA initially granted Wynnewood’s hardship petition for 2017, and it granted Calumet

Shreveport’s, Ergon Refining’s, Placid’s, and Wynnewood’s petitions for 2018. See EPA, Decision on 2018

Small Refinery Exemption Petitions (Aug. 9, 2019). 5

In December 2021, however, EPA reversed itself and

issued a proposal to deny every pending small-refinery

hardship petition, including by retroactively denying pre5

https://www.regulations.gov/comment/EPA-HQ-OAR-20210566-0077#collapseAttachmentMetadata-ember186 (Tab I).

15

viously granted petitions. 86 Fed. Reg. 70,999 (Dec. 14,

2021). EPA proposed to do so by applying multiple seachanges to the agency’s longstanding approach to hardship petitions. See Proposed Denials. 6 EPA also proposed,

however, to continue its existing practice of deciding hardship petitions through agency adjudication, because applying a new rulemaking process to hardship petitions

from prior years would have been unlawfully retroactive.

See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208209 (1988).

EPA’s proposed denials included a new statutory interpretation and a new “economic theory” hypothesizing

that “the RFS program cannot cause [disproportionate

economic hardship]” because RIN costs are supposedly

the same for all obligated parties regardless of their size,

bargaining power, location, or blending capability, and

because obligated parties supposedly universally pass

through 100% of their RIN costs in the price of the fuel

they sell. Proposed Denials 11-12 & n.37. Small refineries

commented on the proposal, explaining why EPA’s new

statutory position was textually unsupportable and why

their individual economic evidence refuted EPA’s hypothesis that small refineries universally pass on RIN costs.

E.g., JA 131-275.

In April 2022, in the first set of administrative actions

challenged here, EPA followed through on its proposal

and simultaneously denied 36 previously decided hardship petitions (31 of which EPA had previously granted),

including petitions submitted by these respondents.

Pet.App.189a-330a (the “April Denials”). EPA announced

it was satisfied that each of the petitioning small refineries

6

EPA, Proposed RFS Small Refinery Exemption Decision

(Dec. 2021), https://www.epa.gov/renewable-fuel-standardprogram/proposal-deny-petitions-small-refinery-exemptions.

16

was able to fully pass through its RIN costs in the price of

its fuel. Id. at 209a-212a. EPA issued each small refinery

a “confidential, refinery-specific appendi[x]” to the April

Denials’ explanation document, giving individualized reasons for its conclusion that each refinery could pass

through 100% of its RFS costs. Id. at 199a.

In June 2022, EPA largely copied and pasted its April

reasoning to announce the denial of another 69 hardship

petitions, including these small-refinery respondents’

petitions for some or all of the 2017 and 2019-2021 years.

Pet.App.44a-188a (the “June Denials”). The June Denials’

explanation document stated “that none of the 69 pending

[small-refinery hardship] petitions for the 2016-2021 compliance years ha[s] demonstrated [disproportionate economic hardship] caused by the cost of compliance with the

requirements of the RFS program.” Pet.App.185a. EPA

again provided separate “confidential, refinery-specific

appendices” explaining its findings on each small refinery’s RIN-cost passthrough. Pet.App.55a.

The refinery-specific appendices accompanying the

April and June Denials detailed EPA’s individualized

assessments of each small refinery’s economic condition.

For example, EPA considered whether one respondent

refinery could blend enough biodiesel given that it operates in a market that does not accept biodiesel blends, and

whether that refinery faced higher ethanol costs than

other large refiners and blenders in its area. JA 285-287.

EPA considered whether another respondent faced

higher transportation costs for shipping from terminals

along the Gulf Coast. JA 293-295. And EPA considered

the price impacts to another respondent from the fact

that, in its tri-State region, the small refinery faced diminished demand for kerosene-based jet fuel and morestringent specifications for ultra-low-sulfur diesel fuel. JA

17

312-313. It was based on individualized, refinery-specific

considerations like those—how each refinery fits in its

own local market—that EPA concluded that each of the

petitioning small refineries “is recovering its [RFS compliance] costs,” and for that reason is not experiencing disproportionate economic hardship. E.g., JA 280, 286, 298.

EPA accomplished its bundled denial decisions only

by ignoring the statutory deadline to decide the hardship

petitions; it held dozens beyond the 90-day deadline so

that it could deny them together and create the appearance of promulgating just two actions.

2. The small-refinery respondents filed petitions for

judicial review of EPA’s denials of their RFS hardship

petitions. Because the refineries each are headquartered,

incorporated, or operate within the Fifth Circuit, they

sought review there. Two groups representing the interests of the biofuel industry—the respondents in support

of petitioner here (“Biofuel respondents”)—intervened to

support EPA’s denials of hardship relief.

EPA moved to dismiss the petitions or transfer them

to the D.C. Circuit, asserting that because it had bundled

together its hardship-petition denial decisions, they were

“nationally applicable” or else “based on a determination

of nationwide scope or effect.” § 7607(b)(1).

The Fifth Circuit denied EPA’s motions. Pet.App.9a15a. EPA’s actions denying the small refineries’ hardship

petitions were “locally … applicable,” not “nationally

applicable,” because they affected only the individual

petitioning small refineries. Id. at 11a-12a. Nor were

EPA’s actions based on any nationwide determination. Id.

at 12a-13a. EPA conceded that it had “considered each

petition on the merits and individual refinery information.” Id. at 14a (cleaned up). And EPA’s explanation

documents confirm that the agency’s final actions—its

18

ultimate denials of the hardship-exemption petitions—

“re[lied] on refinery-specific determinations” about each

refinery’s own “economic hardship” factors. Id. at 15a.

On the merits of the small refineries’ challenges, the

Fifth Circuit explained at length why EPA’s hardshipdenial actions were “(1) impermissibly retroactive;

(2) contrary to law; and (3) counter to the record evidence.” Pet.App.3a; see id. at 16a-33a.

The Biofuel respondents filed petitions for rehearing

and rehearing en banc. Those were denied. Pet.App.332a333a.

3. Some other small refineries whose RFS hardship

petitions were denied as part of EPA’s April and June

Denials chose to petition for judicial review only in the

D.C. Circuit. And still other small refineries filed petitions

for review in the regional circuits but had their petitions

transferred to the D.C. Circuit—most without a substantive explanation or opinion. See U.S. Br. 13 & nn.2-3.

In July 2024, the D.C. Circuit unanimously agreed

with the Fifth Circuit’s “analysis and conclusion” on the

merits that EPA’s April and June Denials were “contrary

to law” and must be vacated. Sinclair Wyoming, 114

F.4th at 706-707 & n.5. The D.C. Circuit also held that the

denials were arbitrary and capricious because “reality

undercuts EPA’s” economic “theory” that small refineries

can universally pass on their RIN costs. Id. at 713.

19

SUMMARY OF ARGUMENT

A. The Fifth Circuit correctly held that EPA’s final

actions challenged here were locally applicable rather

than nationally applicable, and were based on respondents’ local economic circumstances rather than any determination of nationwide scope or effect.

1. Section 7607(b)(1)’s reference to the agency’s “final

action … under this chapter” indicates that it is the substantive CAA text that determines what final actions the

agency was authorized to take. Whether and how EPA

chooses to bundle its final actions is irrelevant to venue.

Here, every part of the relevant provision under the

“chapter”—especially the singular, definite articles and

the deadline for deciding hardship petitions indexed to

each petition’s submission date—indicates that Congress

directed EPA to produce individualized final actions on

individually submitted hardship petitions.

2. EPA’s individual denials of hardship relief were

obviously locally appliable rather than nationally applicable. The government does not argue otherwise. Those

decisions on individually submitted petitions affecting

only one refinery look nothing like the enumerated nationwide actions in Section 7607(b)(1)’s first sentence, but they

closely resemble the enumerated locally applicable actions in the second sentence.

3. “Determination” is a term of art in the CAA. An

EPA action is based on a determination of nationwide

scope or effect in the rare instance where the CAA’s text

directs EPA to make a “determination” about the entire

nation or industry, without the need to consider individual

circumstances. But here, the CAA required EPA to base

its hardship decisions on each petitioning small refinery’s

individual economic hardship factors. And EPA’s own documents confirm that the agency did just that.

20

B. The government’s arguments seeking D.C. Circuit

review fail.

1. The government goes astray because it gets the

relevant “action” wrong. EPA contends that its denials of

105 individually submitted hardship petitions were really

just two actions, asserting that a court may not contest

EPA’s “characterization” of its actions. But it is the text

of “th[e] chapter,” not EPA, that determines what final

actions the agency is authorized to take.

2. EPA’s argument for national applicability depends

on the Court accepting the agency’s view of the relevant

unit of administrative action. Even if EPA were correct

that the bundled decision announcements were the relevant actions, those still were not nationally applicable

because they applied only to those refineries that chose to

petition for hardship relief, not to the whole nation. EPA

asserts that any agency action that touches more than one

judicial circuit is nationally applicable. But that argument

produces the absurd result that an expressly regional

action for a metropolitan region that happens to encompass two States (and two circuits) would be “nationally applicable” and reviewable only by the D.C. Circuit.

3. Contrary to EPA’s assertion, the hardship denial

actions were not based on any determination of nationwide scope or effect.

The relevant text of the “chapter” here, unlike other

closely related provisions, does not call for any “determination” on a small-refinery hardship petition. EPA’s argument depends on treating “determination” not as a term

of art but as an amorphous concept of anything that contributed significantly to an EPA action.

In any event, neither EPA’s new interpretation of the

Act, nor its new RIN-cost-passthrough economic hypothesis, were “nationwide determinations” that formed the

21

“bas[is]” for EPA’s hardship denial decisions. Every EPA

action necessarily rests to some degree on the agency’s

understanding of its statutory authority. And EPA is

required to apply a “uniform” statutory interpretation to

similarly situated small-refinery petitioners—anything

else would have been arbitrary. Moreover, EPA’s new

statutory reading could not be the basis for final actions

on respondents’ hardship petitions; EPA expressly did

not use a rulemaking here. EPA achieved final actions

only by applying its statutory interpretation to respondents’ individual economic facts.

For the same reason, even if EPA’s economic theory

could qualify as a “determination” under the CAA, the

final actions denying respondents’ hardship petitions

were not “based on” it. Moving beyond hypothesis to final

actions required EPA to test its prediction against respondents’ economic evidence. And EPA acknowledges on

the face of the denial decisions that it did so.

EPA’s decisions here do not resemble the unusual

CAA provision that was the genesis for the nationwidedetermination exception sentence in Section 7607(b)(1).

EPA’s appeals to policy cannot overcome the statutory

text. And in any event, EPA’s attempt to force dozens of

small refineries to litigate their RFS hardship-denial

decisions together in the D.C. Circuit has served only to

obscure judicial consideration of the individual economic

factors that the CAA makes the core basis for hardship

relief.

22

ARGUMENT

Section 7607(b)(1) sets the venue for a petition for

review principally by asking whether the EPA “final

action” being challenged is nationally applicable or

locally/regionally applicable. Courts identify the relevant

“final action” by examining the substantive text of “th[e]

chapter”—the CAA. Here the chapter designates the final

actions as EPA’s denials of small refineries’ individually

submitted RFS hardship petitions. The statutory text

calls for individualized consideration of each petitioning

small refinery’s “disproportionate economic hardship.”

§ 7545(o)(9)(B).

Once EPA’s individual denial decisions are properly

identified as the “final action[s]” under challenge, their

national vs. local applicability is obvious: Those individual

denials are, as EPA has always said, “quintessentially

local action[s]” for Section 7607(b)(1) because they “adjudicate[ ] legal rights as to a single refinery in a single location.” EPA Motion 18, Advanced Biofuels, No. 18-1115,

supra. The face of the actions here confirms that EPA

reached final decisions only by examining refinery-specific

evidence and reaching refinery-specific conclusions that

none of these respondents experiences disproportionate

economic hardship from the RFS. Indeed, the statutory

text compelled EPA to deny hardship relief based on the

petitioning small refineries’ own economic circumstances—not any nationwide determination. So the Fifth

Circuit correctly held that it was the proper venue rather

than the D.C. Circuit.

The government contends (U.S. Br. 28-29) that these

hardship-petition denial actions are nationally applicable—unlike all prior hardship decisions—because EPA

has “characteriz[ed]” them differently. EPA conceives of

its decisions denying 105 separately submitted hardship

23

petitions as just two national actions because it chose to

announce those denials together. But EPA does not

decide what the relevant “final action” is under the CAA—

the statute does. The substantive CAA provision at issue

designates each individual hardship decision as the relevant unit of administrative action, none of which applies in

more than one circuit. EPA’s suggestions that any action

happening to touch more than one circuit is “nationally

applicable,” and that it can manufacture nationally applicable actions by bundling individual decisions together,

are inconsistent with the CAA’s text, context, and history,

as well as common sense.

Alternatively, EPA claims that these hardship decisions are locally applicable but based on a new statutory

interpretation and economic theory that have nationwide

scope or effect. Wrong, both times. EPA’s musings about

its statutory instructions, and its generalized economic

hypothesis about small refineries’ RIN costs, were merely

steps along the way of EPA’s individual-refinery decisionmaking process. Neither was a “determination”—

a term of art in the CAA—called for by the text. And neither produced any final agency action. EPA’s final actions

were instead expressly based on its conclusions about

each petitioning small refinery’s economic circumstances.

EPA itself says it denied respondents’ hardship petitions

based on its (erroneous) view that each refinery “is recovering its [RFS compliance] costs.” E.g., JA 280, 286, 298

(emphasis added).

Under the venue instructions in Section 7607(b)(1),

review of these hardship-petition actions belongs in the

regional circuit courts—exactly where prior actions on

similar petitions have long been reviewed. The Fifth Circuit’s judgment should be affirmed.

24

A. The Fifth Circuit’s decision was correct.

Identifying the proper venue for judicial review under

Section 7607(b)(1) involves three questions: (1) What

“final action” did EPA take “under” the CAA? (2) Was

that final action locally or regionally applicable, as opposed

to nationally applicable? (3) If so, was the action nevertheless “based on a determination of nationwide scope or

effect”? The Fifth Circuit answered each of those questions correctly.

1. The “final action[s]” are EPA’s denials of each

small-refinery’s hardship petition.

a. The parties and the courts of appeals agree that

“Section 7607(b)(1) categorizes petitions for [judicial]

review according to the nature of the [EPA] action” being

challenged. Texas 2016, 829 F.3d at 419; accord U.S. Br.

20 (citing additional cases). But a court cannot assess an

action’s nature until it identifies “what ‘final action’ [it is]

dealing with.” Kentucky v. EPA, Nos. 23-3216/23-3225,

2023 WL 11871967, at *2 (6th Cir. July 25, 2023).

The statute helpfully describes how to answer that

question: refer to the “final action of [EPA] under this

chapter.” § 7607(b)(1) (emphasis added). “[T]his chapter”

is the CAA. See p. 6, supra. Section 7607(b)(1)’s phrase

“final action … under this chapter” points the reader to

the substantive CAA provision that provides “the legal

source of the agency’s … authority to take the challenged

actions.” Texas 2023, 2023 WL 7204840, at *4; see p. 10,

supra (additional cases making the same point).

Section 7607(b)(1)’s overall structure makes this even

more clear. By enumerating specific CAA sections authorizing national or local/regional actions in the first two sentences, and then adding a catchall clause to each sentence

for “any other” nationally or locally/regionally applicable

action, the venue provision repeatedly requires cross ref-

25

erencing the CAA provision that authorized the EPA

action under challenge. See Kentucky, 123 F.4th at 461

(Section 7607(b)(1) “focuses on the statute … to distinguish” national vs. local/regional actions).

b. The “final action” that the CAA authorized here is

for EPA to “act on” a small refinery’s individually submitted RFS hardship petition. § 7545(o)(9)(B); see Pet.App.

185a (EPA invoking § 7545(o)(9)(B) as its source of authority). So that is the “relevant unit of administrative action”

for venue purposes. Texas 2023, 2023 WL 7204840, at *4.

Everything about that substantive text demonstrates

that EPA’s final actions on hardship petitions are to be

individualized. Every reference in that subsection to the

“petition” or the petitioning “refinery” is in the singular:

“A small refinery may at any time petition” EPA for a

hardship exemption, based on the “reason of disproportionate economic hardship” if required to comply with the

RFS. § 7545(o)(9)(B)(i) (emphasis added). EPA must

“evaluat[e] a petition,” considering the findings of the

2011 DOE small-refinery study and other economic factors. § 7545(o)(9)(B)(ii) (emphasis added). Whether a particular petitioning small refinery is experiencing disproportionate economic hardship from the RFS in a given

year is necessarily an individualized inquiry focused on

that refinery’s own economic circumstances.

Congress also provided that the statutory deadline for

EPA to “act on any [small-refinery hardship] petition” is

indexed to each petition: “not later than 90 days after the

date of receipt of the petition.” § 7545(o)(9)(B)(iii). That

provision forcefully confirms that Congress directed EPA

to produce individualized actions on hardship petitions;

the rolling, refinery-specific deadlines would make no

sense otherwise. Cf. Kentucky, 123 F.4th at 461 (EPA’s

obligation “to ‘act’ on each State’s ‘submission’ on a plan-

26

by-plan basis within a specified time” indicates those

actions are locally rather than nationally applicable) (citation omitted). And as mentioned above (p. 17, supra), EPA

was able to produce bundled hardship decisions only by

deliberately ignoring the CAA’s decision deadline.

The broader statutory context also shows that Congress did not intend its “singular” definite and indefinite

articles in this subsection to “include and apply to several

persons, parties, or things.” Contra U.S. Br. 26 (quoting

1 U.S.C. § 1). Congress initially granted a blanket exemption from the RFS through 2011 to all “small refineries”—

plural. § 7545(o)(9)(A)(i). Congress then directed EPA to

extend that exemption for another two years on an individualized basis to only “a” small refinery that DOE

determined would face disproportionate economic hardship from the RFS. § 7545(o)(9)(A)(ii)(II). After that, Congress transitioned to the current petition-based approach.

§ 7545(o)(9)(B). The statute now puts the onus on each

small refinery to request hardship relief based on its own

“disproportionate economic hardship.” § 7545(o)(9)(B)(i).

Congress knew how to authorize blanket or multiple

exemption actions, but it did not do so here. Congress

instead directed EPA to “act on” “the petition” “submitted by a small refinery.” § 7545(o)(9)(B)(iii) (emphases

added).

c. Federal courts’ practice also reflects the reality

that EPA’s individual hardship-exemption decisions are

the final actions for venue purposes. When the Fifth Circuit below held that EPA’s denial decisions were unlawful,

it did not vacate all 105 EPA denial decisions, despite the

government’s urging that it had produced just two national actions. Instead, the Fifth Circuit properly vacated

only the denial decisions for the small refineries before it.

Pet.App.34a.

27

In another recent case involving subsequent smallrefinery hardship decisions that EPA bundled together,

the government moved the D.C. Circuit to act separately

on the denial decisions for particular refineries—to vacate

some final actions in EPA’s bundle but not others. See

Calumet Montana Refin., LLC v. EPA, No. 23-1194, Dkt.

2081226 (Oct. 21, 2024); see id., Dkt. 2091139 (Dec. 23,

2024) (D.C. Circuit granting limited vacatur in accord with

EPA’s request). That motion confirms EPA’s agreement

that, even when it bundles small-refinery hardship decisions together, courts review the individual final actions

that apply to each refinery. And EPA would surely take

the position that each denied refinery must file a petition

for review to obtain judicial review at all.

*

The relevant “final action[s]” for venue purposes are

thus EPA’s decisions on each small refinery’s hardship

petition, regardless of EPA’s choice to bundle its petition

decisions. Accord Kentucky, 123 F.4th at 460-463 (rejecting EPA’s argument that its consolidated disapprovals of

21 state implementation plans constituted a single action).

Once the action is properly identified, it “makes this case

easy.” Id. at 461. EPA’s individual denial decisions are

obviously locally/regionally applicable—the government

doesn’t try to argue otherwise. And those decisions did

not involve any nationwide “determination” called for by

the CAA. Rather, each was based (as they must be per the

Act) on EPA’s refinery-specific evaluations of each petitioning small refinery’s own economic hardship factors—

things like local-market acceptance of renewable fuel,

percentage of diesel production, access to capital, etc. See,

e.g., JA 280, 285-287, 293-298.

28

2. EPA’s denials of the hardship petitions are “locally

or regionally applicable” actions.

a. The venue provision’s “applicability” inquiry—

nationally vs. locally/regionally applicable—asks about

“the location of the persons or enterprises that the action

regulates.” Texas v. EPA, No. 10-60961, 2011 WL 710598,

at *3 (5th Cir. Feb. 24, 2011) (quoting New York v. EPA,

133 F.3d 987, 990 (7th Cir. 1998)). Multiple courts of

appeals have agreed, at the government’s urging, that

what matters is “the face of ” the action, American Road,

705 F.3d at 456 (Kavanaugh, J.), not the action’s reasoning

or practical “effects,” ATK Launch, 651 F.3d at 1197.

Accord U.S. Br. 20-21 (citing additional cases). 7

The “ ‘ordinary meaning’ ” of the “key words” in Section 7607(b)(1)’s first sentence—“ ‘nationally applicable

regulations promulgated, or final action taken’ by the

EPA”—“convey[s] that the challenged regulations or

action must apply to the entire country.” Kentucky, 123

F.4th at 459 (emphasis added; citations omitted). The

Sixth Circuit’s Kentucky opinion gives the relevant dictionary definitions, see ibid., though it’s “doubt[ful] that

we need dictionaries for this point,” ibid. The word “nationally” refers to an EPA action affecting the “nation as

a whole.” Ibid. (citation omitted).

Two different canons of construction confirm that

interpretation. The first is ejusdem generis. See Kentucky, 123 F.4th at 460. Because the phrase “nationally

applicable” comes in a catchall clause following an enumerated list of national CAA actions, courts determine

7

Biofuel respondents’ alternative theory (Br. 21)—that the

key to venue is what arguments might be raised in a petition

for review challenging the agency action—has been repeatedly

rejected. It is contrary to the textual instruction to look to the

“final action … under this chapter.” § 7607(b)(1).

29

the meaning of “nationally applicable” by reference to the

enumerated actions. Ibid. (citing Bissonnette v. LePage

Bakeries Park St., LLC, 601 U.S. 246, 252 (2024)). And the

first sentence’s enumerated CAA actions all “have nationwide applicability,” ibid.: They regulate across the whole

nation without individualized consideration, and they

apply irrespective of whether any party requested agency

action or not. By contrast, the enumerated locally applicable actions in Section 7607(b)(1) involve individual regulated entities or States. Finding a “nationally applicable”

action for purposes of the catchall clause thus requires

identifying an EPA final action that similarly affects the

entire nation, irrespective of a party’s local circumstances.

Second, “courts presume that Congress means to

adopt ‘clear boundaries’ in ‘jurisdictional statutes’ to avoid

wasteful litigation over the proper forum.” Kentucky, 123

F.4th at 460 (quoting Direct Mktg. Ass’n v. Brohl, 575

U.S. 1, 11 (2015), and citing other cases). The courts of

appeals have agreed that Section 7607(b)(1) is a venue

provision rather than a jurisdictional one. 8 But the basic

point is the same: No one’s interests are served by complex disputes over venue. Clear boundaries are set by giving “nationally applicable” its ordinary meaning: An EPA

final action is “nationally applicable” for purposes of

Section 7607(b)(1) when it governs the entire nation, as

opposed to when it governs some lesser subset of regulated parties, States, or regions.

b. In the context of the RFS program, the CAA

authorizes EPA to take some national actions and some

local actions. For example: When EPA publishes annual

8

See Texas 2016, 829 F.3d at 418; Dalton Trucking, Inc. v.

EPA, 808 F.3d 875, 879 (D.C. Cir. 2015); Clean Water Action

Council of Ne. Wis., Inc. v. EPA, 765 F.3d 749, 751 (7th Cir.

2014).

30

renewable-fuel blending-volume obligations for the industry, that is a nationally applicable action, and any challenge to it goes to the D.C. Circuit. See, e.g., Americans

for Clean Energy v. EPA, 864 F.3d 691 (D.C. Cir. 2017).

That’s because EPA’s volumes rule affects every RFSobligated party in the nation.

But when EPA decides a small refinery’s RFS hardship petition, that is a “quintessentially local action,” as

EPA itself has previously (correctly) put it. EPA Motion

18, Advanced Biofuels, No. 18-1115, supra. Hardship

decisions look nothing like the national actions enumerated in Section 7607(b)(1)’s first sentence, but they closely

resemble the individualized decisions enumerated in the

second sentence. Hardship decisions do not regulate the

whole nation or industry; they “involve only the regulation

of ” individual facilities’ requests for relief and “have legal

consequences only for [those] facilities.” Texas 2023, 2023

WL 7204840, at *5; see West Virginia Chamber of Commerce v. Browner, 166 F.3d 336 (4th Cir. 1998) (finding it

“clearly regionally applicable” “when the EPA … makes

a determination with respect to a particular facility”).

As EPA has previously explained: Each of the smallrefinery respondents’ hardship petitions “only requested

relief for one refinery.” EPA Reply in Support of Motion

to Dismiss 2, Lion Oil Co. v. EPA, No. 14-3405, Dkt.

4227218 (8th Cir. Dec. 17, 2014). And each denial action

was a “decision with respect to a particular small refinery’s request” that “adjudicates legal rights as to that single refinery in its single location.” U.S. Br. 15, Producers

of Renewables United for Integrity Truth and Transparency v. EPA (“PRUITT”), No. 18-1202, Dkt. 1775897

(D.C. Cir. Mar. 4, 2019).

That is why EPA has repeatedly argued that RFS

hardship decisions are locally applicable for Section

31

7607(b)(1), before EPA began attempting to manufacture

venue in the D.C. Circuit by bundling decisions together.

E.g., PRUITT, No. 18-1202, supra; EPA Response 2,

Renewable Fuels Ass’n v. EPA, No. 18-9533, Dkt. 35 (10th

Cir. July 12, 2018) (“venue is proper in this Court”); U.S.

Br. 2-3, Ergon-West Virginia, Inc. v. EPA, Nos. 19-2128,

19-2148, 19-2152 (consol.), Dkt. 64 (4th Cir. May 28, 2020)

(challenge to denied hardship petition “properly venued”

in Fourth Circuit “because the action is locally or regionally applicable”).

3. EPA’s actions were based on local economic facts,

not any nationwide statutory determination.

a. Because EPA’s denials of respondents’ RFS hardship petitions are “locally or regionally applicable action[s],” the text of Section 7607(b)(1)’s third sentence

presumptively “requires review in th[e] [regional] circuit.” Texas 2016, 829 F.3d at 424; see Kentucky, 2023 WL

11871967, at *3. EPA can overcome that presumption only

by demonstrating that its denials were “based on a determination of nationwide scope or effect.” § 7607(b)(1); see

pp. 8-10, supra.

The courts of appeals broadly agree that the scope and

effect of EPA’s determinations are reviewed “de novo”

and without deference to the agency. Texas 2016, 829 F.3d

at 421 (5th Cir.); see Sierra Club, 47 F.4th at 746 (D.C.

Cir.); Dalton Trucking, Inc. v. EPA, 808 F.3d 875, 881

(D.C. Cir. 2015). The third-sentence exception applies

only “if [the] action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based

on such a determination.” § 7607(b)(1) (emphases added).

It does not suffice for EPA to find and publish a nationwide-effect conclusion; the action must actually be based

on a determination of nationwide scope or effect and EPA

32

must publish that finding. The first of those independent

“two conditions” (unlike the second) makes no reference

to what EPA finds or publishes, so it is a legal question for

the courts. Texas 2016, 829 F.3d at 421; see Sierra Club,

47 F.4th at 746; see also Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

Both the text and history of Section 7607(b)(1)’s third

sentence show that, to trigger the exception, the relevant

substantive CAA provision must textually direct EPA to

make a “determination” for the entire nation—i.e., the

kind of determination that does not depend on individual

circumstances. See pp. 8-9, supra. That was the kind of

statutory determination identified by EPA General Counsel Frick that the government agrees (U.S. Br. 18)

prompted Congress to add the third sentence to Section

7607(b)(1). And the government further agrees (U.S. Br.

31) that Section 7607(b)(1)’s “based on” formulation means

the relevant EPA determination cannot be “peripheral or

extraneous” but must “lie at the core of the agency

action.” Texas 2016, 829 F.3d at 419.

The CAA is littered with provisions requiring “determinations” as the basis for final actions. In fact, more than

half of the CAA’s sections call for at least one determination before EPA can act. See generally 42 U.S.C. Ch. 85.

Congress’s repeated use of the term “determination” or

its derivatives throughout the Act indicates it is a term of

art with the same meaning in Section 7607(b)(1). See

Mohamad v. Palestinian Auth., 566 U.S. 449, 456 (2012).

So courts do not apply Section 7607(b)(1)’s third sentence

by asking generally about the inputs or processes for an

EPA action; they look to whether the statutory text called

for taking that action on the basis of a specific kind of

determination. See Kentucky, 123 F.4th at 463-464 (“When

used to describe a ruling from an ‘administrative agency,’

33

‘determination’ has a more precise ‘legal meaning’ ” that

does “not” refer to “each preliminary step on the road to

[the agency’s] decision.”) (citation omitted).

b. EPA’s denials of the small-refinery respondents’

hardship petitions were not based on any statutory determinations of nationwide scope or effect.

i. That is so, first, because the relevant CAA provision here (§ 7545(o)(9)(B)) does not call for any determination at all. Unlike the immediately preceding subsection

and other subsections within the same section, subsection

7545(o)(9)(B) does not use the phrase “determination” or

“determines.” It instead invites a small refinery to petition for relief “for the reason of disproportionate economic

hardship,” and it says that EPA should “evaluat[e]” that

hardship petition in consultation with DOE after considering DOE’s 2011 study and “other economic factors.”

There are no statutory “determination[s]” in that process.

To the extent Section 7545(o)(9)(B) contemplates any

statutory determination at all, it calls for a determination

that has a local scope and effect. After the blanket RFS

exemption for small refineries ended in 2011, Congress

directed EPA to extend an exemption for at least two

more years “[i]n the case of a small refinery that the Secretary of Energy determines … would be subject to a disproportionate economic hardship if required to comply

with” the RFS. § 7545(o)(9)(A)(ii)(II) (emphases added).

No longer did all small refineries nationwide get the

exemption; only those specific small refineries that were

determined to face disproportionate economic hardship.

That provision required EPA to grant exemptions based

on DOE’s local determination that a particular small

refinery would face hardship.

34

Congress then provided in the very next subsection—

the one at issue here—that “[a] small refinery may at any

time petition [EPA] for an extension of the exemption

under subparagraph (A) for the reason of disproportionate economic hardship.” § 7545(o)(9)(B)(i). The reference

back to “subparagraph (A)” indicates that, when EPA

considers a small refinery’s hardship petition, it must

make the same individualized hardship determinations

that drove the earlier regime.

The plain text of “th[e] chapter” thus compels EPA’s

hardship decisions to be “based on” an economic analysis

for “a” petitioning small refinery that is local in scope and

effect. § 7607(b)(1); § 7545(o)(9)(B)(i). EPA has said the

same thing: the Act “give[s] EPA the authority to grant

[a hardship] petition only when a small refinery demonstrates it is experiencing [hardship] caused by compliance

with the RFS program.” Pet.App.185a. That must be the

core basis for any final action on a hardship petition.

ii. Moreover, the record here shows that EPA in fact

based its final actions denying hardship relief on just such

individualized conclusions. EPA explained that it had

“completed a thorough evaluation of the data and information provided in the [hardship] petitions, supplemental

submissions, and comments to determine if any of the

petitioners have demonstrated that the cost of compliance

with the RFS is the cause of their alleged [hardship].”

Pet.App.94a-95a. EPA then found “that none of the”

pending petitions had “demonstrated [hardship] caused

by the cost of compliance with the requirements of the

RFS program.” Pet.App.185a; accord U.S. Br. 10 (“EPA

determined that none of the petitioning small refineries

had rebutted [the RIN-cost-passthrough] presumption

through evidence about their specific circumstances.”).

35

To be sure, EPA had hypothesized in the proposed

denials, before its final actions, that no small refinery

would suffer hardship from the RFS because each could

fully pass through its RIN costs. But that was merely a

hypothesis. EPA called it then an “economic theory,”

Pet.App.212a n.42, 251a; and calls it now (U.S. Br. 8) a “rebuttable presumption.” Whatever it’s called, for EPA to

test its hypothesis—to move beyond theory and produce

final agency action on the hardship petitions—EPA concedes that it needed to, and did, “carefully review[ ] data,

[fuel-sales] contracts, and other information from small

refineries.” Pet.App.98a-99a. It was only then that EPA

concluded (erroneously) that each small refinery actually

“is recovering its [RFS compliance] costs,” e.g., JA 280,

286, 298, and for that reason does not face economic hardship, Pet.App.100a.

*

Both the statutory text and record confirm that EPA

took these final actions “based on” conclusions that none

of the small-refinery respondents would experience

disproportionate economic hardship from the RFS.

§ 7607(b)(1). Even if those conclusions could qualify as

“determinations” at all, they were local determinations

based on an analysis of each refinery’s local evidence, not

any “determination of nationwide scope or effect.” Ibid.

B. EPA’s arguments seeking D.C. Circuit review fail.

Despite EPA’s longtime position that its final actions

on hardship petitions are reviewable only in the regional

circuit courts, EPA now argues that these denial decisions

were nationally applicable, or else were based on a determination of nationwide scope or effect. EPA is wrong on

both points.

36

1. EPA gets the “action” wrong.

EPA does not attempt to argue that its individual

hardship-petition decisions—as opposed to its bundled

explanations in the April and June Denials of its reasons

for denying those petitions—were nationally applicable.

EPA’s argument thus hangs on this Court being willing to

credit its assertion that it produced just two final actions.

But the statute shows EPA is wrong about that. It is the

chapter’s text, not EPA, that establishes what qualifies as

the relevant “action” “under” the CAA. Texas 2023, 2023

WL 7204840, at *4.

a. EPA’s brief offers no real attempt to analyze the

first critical phrase in Section 7607(b)(1): “final action …

under this chapter.” The government says (U.S. Br. 2829) all that matters is “EPA’s characterization of its own

agency action” and that courts may not “second-guess

EPA’s own framing.” But all agree it is the nature of the

administrative action that matters for venue. See pp. 2223, supra. And nothing in the statute gives EPA the power

to alter the nature of administrative actions just by choosing how to publish those actions (grouped together vs.

individual announcements). EPA’s argument calls back to

an era before this Court held squarely that “courts, not

agencies,” determine “the meaning of statutory provisions.” Loper Bright, 603 U.S. at 392, 394.

The Sixth Circuit recently explained why it rejected

the same argument advanced by the government here:

that EPA’s choice of framing, rather than the statutory

text, controls what counts as the final action. See Kentucky, 123 F.4th at 460-463. “The ‘structure’ of the judicialreview provision … focuses on the statute”—not on how

EPA chose to report its decisions—“to distinguish the

EPA actions that parties must challenge in the D.C. Circuit from those they must challenge in regional circuits.”

37

Id. at 461 (quoting Engine Mfrs. Ass’n v. South Coast Air

Quality Mgmt. Dist., 541 U.S. 246, 252 (2004)). Congress’s

own designation in Section 7607(b)(1)’s first two sentences of enumerated actions as either nationally applicable or locally applicable, combined with catchall phrases

for each sentence, indicates it is the Act, not EPA, that

gives an action its nature. See ibid.

EPA’s invocation (U.S. Br. 28) of “the face of the final

action” does not advance the analysis. “Th[at] argument

conflates the [explanation] issued” for EPA’s hardshipdenial decisions “with the ‘final action’ that the EPA

takes.” Kentucky, 123 F.4th at 462 (quoting § 7607(b)(1)).

Small-refinery respondents’ position does not depend on

the contents of any petitioner’s court challenge to the

EPA action or on downstream effects. Venue depends,

instead, on whether the text of the chapter shows the challenged action on its face to be more like Section

7607(b)(1)’s enumerated nationally applicable actions

(governing the whole nation) or more like the enumerated

locally applicable actions that resolve individual parties’

rights or obligations.

b. None of that calls into question EPA’s “free[dom]

to fashion [its] own rules of procedure,” including

“ ‘whether applications should be heard contemporaneously or successively.’ ” U.S. Br. 26-27 (quoting FCC v.

Pottsville Broad. Co., 309 U.S. 134, 138 (1940)). That freedom includes the “process” for taking action; for example,

the freedom (where the law permits) to choose between

“rulemaking, individual adjudication, or a combination of

the two.” NAACP v. Federal Power Comm’n, 425 U.S.

662, 668 (1976). EPA could have conducted a rulemaking

to establish a new interpretation of Section 7545(o)(9)(B)

and new adjudicatory framework, and such a rule would

likely have been nationally applicable. But a new rule like

38

that would have needed to be prospective only, see p. 15,

supra, which did not meet EPA’s goal here to issue longoverdue decisions denying previously submitted smallrefinery hardship petitions from prior years.

Respondents’ position thus does not disturb EPA’s

choice whether to proceed by rulemaking versus adjudication. EPA will retain flexibility in running its future

hardship decisionmaking processes, so long as it examines

each small refinery’s evidence and adheres to the statutory decision deadline for final action on each petition.

What EPA may not do is what it attempted here: disregard whether the CAA’s text calls for local rather than

national action. Contrary to EPA’s assertion (U.S. Br.

26-27), respondents’ textual analysis does not rely merely

on “an indefinite article.” As described above (pp. 24-27,

supra), every relevant part of the text and structure of

Section 7545(o)(9) confirms that Congress wanted RFS

hardship decisions to be individualized. Cf. Kentucky, 123

F.4th at 461 (“the disapproval of each state plan qualifies

as a distinct ‘action’ ”).

2. EPA fails to establish that the hardship decisions

are nationally applicable.

With EPA’s misidentification of the relevant final

action corrected, the errors in its remaining arguments

become clear. EPA’s April and June 2022 explanation documents asserted that the agency had taken nationally

applicable actions for two reasons. First, EPA announced

together the denial of hardship petitions submitted by

refineries located in different circuits. Pet.App.185a-188a

(June 2022 announcement: “This final action denies 69

petitions … for over 30 small refineries across the country[.]”); Pet.App.327a-330a (similar for April 2022 announcement). Second, EPA applied its new statutory

interpretation and new economic passthrough hypothesis

39

to all hardship petitions that the agency adjudicated. E.g.,

Pet.App.187a-188a (“EPA’s revised interpretation of the

relevant CAA provisions and the RIN discount and RIN

cost passthrough principles … are applicable to all small

refineries.”).

a. Although EPA defended the second venue argument in its certiorari petition, U.S. Pet. 10 (arguing that

the Denials “are ‘nationally applicable’ because they apply

a uniform methodology to small refineries”), it has now

abandoned it, making only the geographic argument here.

U.S. Br. 19-24. Rightly so. Looking to the legal standard

or reasoning applied would contradict EPA’s long-held

position—accepted by multiple courts of appeals—that

only “the face” of the challenged action matters for venue,

not the action’s reasoning or effects. See p. 28, supra. 9

b. EPA’s argument that the actions here were nationally applicable because of geography rests on two erroneous premises. First, as discussed just above in Part B.1, it

wrongly assumes the relevant “actions” are the two documents explaining EPA’s reasons for denying 105 individually submitted hardship petitions. “[T]hrow[ing] a

blanket labeled ‘national’ over [105] individual decisions”

does not “convert” them “into … national one[s].” West

Virginia, 90 F.4th at 330. That is especially so when EPA

9

Biofuel respondents’ argument (at Br. 36) that “smallrefinery exemption decisions” are “inherently nationally applicable” because they affect “the amount of renewable fuel that

obligated parties must inject into the nation’s transportationfuel supply” fails for the same reason. The “applicability” inquiry is unconcerned with the “practical effects” of the EPA

action. American Road, 705 F.3d at 456 (Kavanaugh, J.). Especially a downstream issue like whether EPA chooses to adjust

volume obligations for other parties based on outcomes of small

refineries’ hardship petitions.

40

was able to get all of these individual decisions under its

purportedly “national” blanket only by refusing to follow

the CAA’s 90-day deadline for answering the hardship

petitions. § 7545(o)(9)(B)(iii). Courts generally “will not

suffer a party to profit by his own wrongdoing.” United

States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996). And

the government “should turn square corners in dealing

with the people.” Department of Homeland Sec. v.

Regents of the Univ. of California, 591 U.S. 1, 24 (2020)

(internal quotation marks and citation omitted).

Second, EPA now reads the statutory phrase “the

appropriate circuit” to mean that “any action that spans

more than one judicial circuit is properly viewed as ‘nationally applicable’ and subject to review only in the D.C.

Circuit.” U.S. Br. 21-22 (quoting § 7607(b)(1)). According

to the government (U.S. Br. 21), “[t]he statute’s use of the

definite article … indicates that, for any given locally or

regionally applicable EPA action, there is only one appropriate regional court of appeals in which to seek review.”

That reading is incorrect.

Nothing in Section 7607(b)(1) indicates that the phrase

“the appropriate circuit” informs the meaning of “nationally applicable,” and the plain meaning of “nationally

applicable” contradicts EPA’s reading. “Nationally”

means “with regard to the nation as a whole.” Nationally,

THE OXFORD ENGLISH DICTIONARY (1971); see Kentucky, 123 F.4th at 459 (same). Yet on EPA’s reading, an

action applying to far less than the whole nation—say, one

applying only to Mississippi and Alabama—would be

“nationally applicable.” That is a stretch, to say the least.

Even accepting arguendo EPA’s view of the relevant

final action, the April and June 2022 Denials were not “nationally applicable” because they did not cover the whole

nation like the enumerated actions in Section 7607(b)(1)’s

41

first sentence do. They applied to (and bound) only those

small refineries that petitioned for an exemption. See

Pet.App.11a-12a.

The ordinary meaning of “regionally applicable” also

rebuts EPA’s proffered reading, because that term contemplates agency actions applying in multiple places

within a region: “of or pertaining to, or connected with, a

particular region.” Regional, THE OXFORD ENGLISH

DICTIONARY (1971). Indeed, EPA’s attempt to put so

much weight on a single definite article produces textually

absurd results. Consider EPA’s 250 air quality control

regions, some of which cover large metropolitan areas

that happen to cross State (and circuit) lines.10 “Metropolitan St. Louis” (Region 70) and “Metropolitan Kansas City”

(Region 90) are two examples. Can there be any doubt

that an EPA disapproval of a regional implementation

plan for only Region 90 (Metropolitan Kansas City) is a

“regionally applicable” action for purposes of Section

7607(b)(1), even though that action touches both the

Eighth and Tenth Circuits?

Congress did not think so. The 1970 Senate Report

invoked by the government (U.S. Br. 23) said that “implementation plans which run only to one air quality control

region” should be reviewed in the circuit court “in which

the affected air quality control region, or portion thereof,

is located.” S. Rep. No. 1196, 91st Cong., 2d Sess. 41 (1970)

(emphasis added). Yet according to the government (U.S.

Br. 22), the circuit courts governing the States affected by

a Kansas City regional action are powerless because “any

action that spans more than one judicial circuit” must go

exclusively to the D.C. Circuit.

10

See

https://aqs.epa.gov/aqsweb/documents/codetables/aqcrs.html.

42

The Senate Report supports what ordinary usage suggests about the meaning of “the appropriate circuit.”

§ 7607(b)(1) (emphasis added). The use of “the appropriate circuit” rather than “the appropriate circuit(s)” reflects merely that Congress often doesn’t legislate with

laser-like precision. E.g., United States v. Bass, 404 U.S.

336, 344 (1971) (“we cannot pretend that all statutes are

model statutes”). For most EPA final actions (properly

identified), it will be readily apparent whether the action

applies to the whole nation or to some subset—and in the

latter instance, which circuit court is “appropriate.” That

is certainly true for EPA’s RFS hardship decisions, which

affect only individual small refineries.

c. Taken together, EPA’s arguments reveal the

agency’s conscious desire for the power to choose where

its actions are reviewed. EPA says (U.S. Br. 28-29) that

“action … under this chapter” means its own “characterization” of an action, which courts cannot “second-guess.”

And EPA further says (U.S. Br. 22) that any time an

action affects states or parties in more than one circuit, it

is automatically entitled to D.C. Circuit review. If EPA

were right about both, then the agency could nearly always manufacture venue in the D.C. Circuit. EPA could

simply mush together two small refineries’ RFS hardship

decisions, or decisions on two States’ implementation

plans—even two decisions that have nothing to do with

each other—and thereby deny the regulated parties the

opportunity for review by a regional circuit court.

The text of Section 7607(b)(1) does not allow that

manipulation. “[V]enue provisions in Acts of Congress

should not be so freely construed as to give the Government the choice of ‘a tribunal favorable’ to it.” Travis v.

United States, 364 U.S. 631, 634 (1961) (citation omitted).

43

3. The hardship decisions were not based on a

determination of nationwide scope or effect.

EPA asserts (U.S. Br. 33-35) that its individual denial

decisions were based on two determinations of nationwide

scope or effect: “EPA’s revised interpretation of the relevant CAA provisions and the RIN discount and RIN cost

passthrough principles.” Pet.App.187a-188a. That mischaracterizes both the statutory text and the final actions.

a. As an initial matter, neither EPA’s statutory interpretation nor its economic hypothesis was a statutory

“determination” as the CAA uses that term of art. See pp.

32-34, supra. Neither describes any issue that the CAA’s

text directed EPA to “determine” before acting on a small

refinery’s RFS hardship petition. See § 7545(o)(9).

In the immediately preceding subsection, Congress

instructed EPA to extend two-year hardship exemptions

based on DOE’s “determin[ation]” about a small refinery’s hardship. § 7545(o)(9)(A)(ii)(II). And elsewhere in

the same Section, Congress authorized EPA to grant certain waivers, following consultation with DOE, “based on

a determination by the Administrator … that implementation of the requirement would severely harm the economy or environment of a State, a region, or the United

States.” § 7545(o)(7)(A)(i).

Congress thus knows how to make actions “based on a

determination” when it wants to. It did not do that for

small-refinery hardship petitions in Section 7545(o)(9)(B).

EPA’s position wrongly depends on treating “determination” in Section 7607(b)(1) not as a statutory term of art

but rather as some amorphous concept of anything that

contributed significantly to a final action.

b. Even if Section 7607(b)(1) used “determination” in

the colloquial sense, EPA would still be wrong about the

basis for these hardship-petition denial actions.

44

i. EPA’s first suggestion—that a statutory interpretation can qualify as a “determination of nationwide scope

or effect”—is nothing less than an argument that every

EPA action must go to the D.C. Circuit. EPA is a “creature[ ] of statute,” so “it possess[es] only the authority that

Congress has provided.” National Fed’n of Indep. Bus. v.

Dep’t of Lab., Occupational Safety & Health Admin., 595

U.S. 109, 117, (2022). Every EPA action is necessarily

“based on” the agency’s understanding of its statutory

authority.

It similarly cannot be the case (contra U.S. Br. 34) that

EPA’s denial actions here were based on a nationwide

determination because EPA applied a statutory interpretation “uniformly” to them. If EPA had not done that—if

it had applied a different statutory reading to similarly

situated small-refinery petitioners—that would be the

height of arbitrariness. So “if application of a national

standard … were the controlling factor, there never could

be a local or regional action” because every EPA action

“purportedly applies a national standard created by the

national statute and its national regulations.” West Virginia, 90 F.4th at 329-330. This Court should not read the

narrow nationwide-scope-or-effect exception to “swallow

the” local-or-regionally-applicable rule. Cuomo v. Clearing House Ass’n, L.L.C., 557 U.S. 519, 530 (2009).

The most obvious examples of locally applicable

actions involve EPA applying a uniform statutory standard to individual regulated parties’ factual circumstances.

Accord U.S. Br. 42. Acknowledging that reality, EPA

ultimately abandons any argument based on application

of a “uniform” standard, conceding (U.S. Br. 41) that EPA

“does not” make a nationwide-scope determination “when

it merely applies a previously established agency … interpretation to new ‘locally or regionally applicable’ circum-

45

stances.” That describes what EPA did in the final actions

challenged here: It applied its statutory interpretation to

each petitioning small refinery’s evidence about its local

economic circumstances. See pp. 34-35, supra.

Insofar as EPA contends (U.S. Br. 33, 41) that what

matters here is that it promulgated its “new interpretation” at “roughly the same time” it denied the hardship

petitions, that argument does not rebut the Fifth Circuit’s

venue conclusion. For one thing, that argument would not

extend to the June 2022 Denial decisions, which merely

applied the statutory interpretation that EPA had announced months earlier in April. Pet.App.80a. 11

In any event, EPA’s choice to offer a new statutory

analysis cannot alter what determination the statute

required as the basis for every small-refinery hardship

decision. The text does not ask whether the agency made

some determination of nationwide scope or effect in connection with the action. It asks whether EPA “based” its

final action on such a determination. § 7607(b)(1). Here, as

explained above, the basis for these final actions must by

law be findings about the individual petitioning small

Despite EPA repeatedly referring to the April and June

Denials as two separate actions, EPA simultaneously argues

that those explanation documents should be treated as one for

purposes of establishing its new adjudication approach to hardship petitions. U.S. Br. 42-43 n.6. EPA urges this Court (ibid.)

to disregard the “time that passed between the[ir] finalization”

because “[b]oth denial actions here stemmed from a single

propos[al].” But obviously one proposal can lead ultimately to

multiple final actions. And according to the face of the June

explanation document, it was only the April explanation document that broke new ground: “In this action, EPA is applying

the approach proposed on December 7, 2021, and adopted in

the April 2022 [RFS] Denial.” Pet.App.80a (emphases added).

11

46

refineries’ economic circumstances. And EPA has admitted that these hardship decisions were based on just that.

See p. 34, supra.

Moreover, EPA’s new statutory interpretation was

not sufficient to produce final agency action in this context. Recall that EPA could not, and did not, use a rulemaking for its new interpretation—because to do so here

would plainly have been illegally retroactive. If EPA had

wanted judicial review to focus on its new statutory interpretation (U.S. Br. 42), it could have run a (lawful) rulemaking process. But EPA expressly chose to proceed only

by adjudication. See Pet.App.188 (“This action is not a

rulemaking”). That choice meant that EPA could produce

“final action … under this chapter” not by analyzing the

statute but rather only by evaluating the petitioning small

refineries’ economic evidence. § 7607(b)(1).

It is also no answer for EPA to contend (U.S. Br. 35,

42) that a case must go to the D.C. Circuit when “circumstances suggest” that EPA’s statutory interpretation is

“likely to be called into question” in the litigation. That

flies in the face of the courts’ consistent holding (and

EPA’s consistent position) that what matters is EPA’s

“final action,” not the petitioner’s arguments challenging

it. See pp. 7-8, supra. It will not always be apparent at the

outset of litigation, when venue is typically (and most efficiently) resolved, what aspects of an EPA action will be

called into question.

The better answer is the simpler one that also gives

the statutory terms their ordinary meaning: An EPA

action is based on a determination of nationwide scope or

effect in the rare instance when the CAA’s text directs

EPA to make a factual “determination” about the entire

nation or industry, without the need to consider individual

circumstances.

47

ii. For many of the same reasons, EPA’s RIN-costpassthrough hypothesis did not make these hardship

denial actions based on a determination of nationwide

scope or effect. Even if EPA’s passthrough hypothesis

could qualify as a “determination” under the statute when

the text does not describe it that way, see pp. 33-34, supra,

the actions denying the hardship petitions were not

“based on” it, § 7607(b)(1). EPA had merely a hypothesis—an “analysis of how” EPA “expected” individual fuels

markets to respond, Pet.App.163a-165a—that EPA

needed to test, and did test, against each hardship petition’s evidence. See pp. 34-35, supra. Only that analysis of

each refinery’s individual evidence could be the “bas[is]”

for “final action[s]” denying respondents’ hardship petitions. § 7607(b)(1) (emphasis added).

EPA’s actions were not “based on” any supposedly

nationwide RIN-cost-passthrough determination for the

additional reason that, with or without any nationwide

assessment, EPA’s denial actions here would have been

exactly the same. The government agrees (U.S. Br. 41)

that the textual “causation requirement” in Section

7607(b)(1) means that “the relevant determinations” must

be “at the core of EPA’s action.” But here, EPA did not

need any nationwide finding about any other refineries to

conclude, as it wrongly did in the denial actions, that each

of the small-refinery respondents were “able to pass along

RFS compliance costs,” were “recovering [their] costs,”

and so were suffering “no economic harm.” Pet.App.99a100a, 165a; JA 280.

In short, the conclusion that drove each denial decision

was not that all obligated parties recover their RFS costs;

it was that each of these respondents (purportedly) does.

As EPA itself explains (U.S. Br. 10): It denied respondents’ hardship petitions because it “determined that none

48

of the petitioning small refineries had rebutted [the RINcost-passthrough] presumption through evidence about

their specific circumstances.” Those were conclusions

about specific refineries, not nationwide determinations. 12

c. EPA invokes the history (U.S. Br. 35-38) of the

third-sentence exception in Section 7607(b)(1), but that

history actually undermines EPA’s position. As recounted

above, the exception was prompted by General Counsel

Frick’s description of an atypical CAA provision that,

though calling for a local action (an extension for specific

States), textually required EPA’s action to be based on a

determination about technology available throughout the

industry. See pp. 8-9, supra. That extension action did not

require or even contemplate any consideration of individualized State circumstances; EPA was tasked instead

with making a finding about the technology available

throughout the nation.

EPA’s actions on small-refinery hardship petitions

look nothing like that. The text of Section 7545(o)(9)(B),

unlike the unusual provision that Frick described, does

not ask EPA to make any “determination” about the

entire nation or industry as a basis for granting hardship

relief. It does not call for any determination at all. To the

extent it does, it calls for a determination about the individual petitioning small refinery’s economic circumstances. See pp. 33-34, supra.

EPA responds by catastrophizing (U.S. Br. 38) that if

the denials here do not qualify as based on nationwide

12

EPA’s footnoted discussion (U.S. Br. 34 n.5) of how it

chooses to respond to granted hardship petitions is irrelevant

to Section 7607(b)(1), because those downstream choices by the

agency say nothing about what was the “bas[is]” for the final

denial actions here.

49

determinations, then the third-sentence exception to Section 7607(b)(1) will be “practically insignificant.” But the

third sentence was always meant to state an exception to

the general rule for locally applicable actions. General

Counsel Frick urged the exception’s adoption to address

a CAA provision that has since been repealed. That is

likely why, before the cases involving EPA’s denial decisions here, no court had ever found a locally applicable

EPA action that was based on a determination of nationwide scope or effect. The exception is properly narrow.

d. EPA concludes by resorting to a policy argument:

It asks this Court to read “based on a determination of

nationwide scope or effect” broadly, on the theory that

judicial review will be more efficient if the D.C. Circuit

alone considers issues like EPA’s statutory analysis and

methodological framework.

Appeals to policy cannot supersede the ordinary

meaning of the terms in Section 7607(b)(1) or the confirmation of their meaning in the statutory context and history. Niz-Chavez v. Garland, 593 U.S. 155, 171 (2021) (“no

amount of policy-talk can overcome a plain statutory command”). And in any event, EPA’s policy argument falls

flat. If EPA wants to propound a new statutory interpretation and have it reviewed by only the D.C. Circuit, then

the agency need only adopt that interpretation through a

lawful rulemaking process.

Experience has proven EPA wrong in suggesting that

consolidated D.C. Circuit review of CAA actions is always

or usually best. The litigation here is a perfect example.

Because EPA persuaded several regional circuit courts to

transfer small refineries’ challenges to their hardshipdenial decisions, the D.C. Circuit ended up hearing one

massive case consolidating dozens of small refineries’

petitions for review. See p. 18, supra. That consolidation

50

made the D.C. Circuit litigation take much longer than

other small refineries’ regional-circuit challenges to

EPA’s denials of their hardship petitions.

Even more important, consolidation in the D.C. Circuit made it very difficult for the individual small refineries to get judicial attention on what ultimately matters

most: their specific economic circumstances that give rise

to their disproportionate economic hardship from the

RFS. To take just one example: In the mass D.C. Circuit

challenge alongside dozens of co-petitioners, there was no

easy way for a small refinery affiliated with one respondent here, Calumet Montana, to ask the court to focus on

the idiosyncrasies of producing blended diesel fuel in a

cold climate in winter. Yet that is exactly the sort of condition that causes Calumet Montana to face disproportionate economic hardship from the RFS.

EPA’s preference for near-universal D.C. Circuit

review would obscure the judiciary’s consideration of

individual regulated entities’ circumstances, contrary to

the essential logic of Congress’s plan for a national vs.

local divide in Section 7607(b)(1).

51

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

LeAnn M. Johnson Koch

Alexandra M. Bromer

Jonathan G. Hardin

Aimee E. Ford

PERKINS COIE LLP

700 Thirteenth Street N.W.

Suite 800

Washington, DC 20005

Eric Wolff

PERKINS COIE LLP

1201 3rd Avenue

Suite 900

Seattle, WA 98101

January 21, 2025

Michael R. Huston

Counsel of Record

Karl J. Worsham

Jordan M. Buckwald

PERKINS COIE LLP

2525 E. Camelback Road

Suite 500

Phoenix, AZ 85016-4227

(202) 434-1630

mhuston@perkinscoie.com

Sopen Shah

PERKINS COIE LLP

33 E. Main Street

Suite 201

Madison, WI 53703

Statutory Appendix

TABLE OF CONTENTS

42 U.S.C. § 7545(o) ............................................................ 1a

42 U.S.C. § 7607(b) .......................................................... 27a

42 U.S.C. § 1857h-5 (1970) .............................................. 29a

42 U.S.C. § 7607 (1982) .................................................. 30a

1a

42 U.S.C. § 7545

Regulations of fuels

…

(o) Renewable fuel program

(1) Definitions

In this section:

(A) Additional renewable fuel

The term “additional renewable fuel” means fuel that

is produced from renewable biomass and that is used

to replace or reduce the quantity of fossil fuel present

in home heating oil or jet fuel.

(B) Advanced biofuel

(i) In general

The term “advanced biofuel” means renewable fuel,

other than ethanol derived from corn starch, that has

lifecycle greenhouse gas emissions, as determined by

the Administrator, after notice and opportunity for

comment, that are at least 50 percent less than baseline lifecycle greenhouse gas emissions.

(ii) Inclusions

The types of fuels eligible for consideration as “advanced biofuel” may include any of the following:

(I) Ethanol derived from cellulose, hemicellulose,

or lignin.

(II) Ethanol derived from sugar or starch (other

than corn starch).

(III) Ethanol derived from waste material, including crop residue, other vegetative waste material, animal waste, and food waste and yard waste.

(IV) Biomass-based diesel.

2a

(V) Biogas (including landfill gas and sewage waste

treatment gas) produced through the conversion of organic matter from renewable biomass.

(VI) Butanol or other alcohols produced through

the conversion of organic matter from renewable biomass.

(VII) Other fuel derived from cellulosic biomass.

(C) Baseline lifecycle greenhouse gas emissions

The term “baseline lifecycle greenhouse gas emissions” means the average lifecycle greenhouse gas

emissions, as determined by the Administrator, after

notice and opportunity for comment, for gasoline or

diesel (whichever is being replaced by the renewable

fuel) sold or distributed as transportation fuel in 2005.

(D) Biomass-based diesel

The term “biomass-based diesel” means renewable

fuel that is biodiesel as defined in section 13220(f) of

this title and that has lifecycle greenhouse gas emissions, as determined by the Administrator, after notice and opportunity for comment, that are at least 50

percent less than the baseline lifecycle greenhouse gas

emissions. Notwithstanding the preceding sentence,

renewable fuel derived from co-processing biomass

with a petroleum feedstock shall be advanced biofuel

if it meets the requirements of subparagraph (B), but

is not biomass-based diesel.

(E) Cellulosic biofuel

The term “cellulosic biofuel” means renewable fuel derived from any cellulose, hemicellulose, or lignin that

is derived from renewable biomass and that has lifecycle greenhouse gas emissions, as determined by the

Administrator, that are at least 60 percent less than

the baseline lifecycle greenhouse gas emissions.

3a

(F) Conventional biofuel

The term “conventional biofuel” means renewable fuel

that is ethanol derived from corn starch.

(G) Greenhouse gas

The term “greenhouse gas” means carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons,9 sulfur hexafluoride. The Administrator may

include any other anthropogenically-emitted gas that

is determined by the Administrator, after notice and

comment, to contribute to global warming.

(H) Lifecycle greenhouse gas emissions

The term “lifecycle greenhouse gas emissions” means

the aggregate quantity of greenhouse gas emissions

(including direct emissions and significant indirect

emissions such as significant emissions from land use

changes), as determined by the Administrator, related

to the full fuel lifecycle, including all stages of fuel and

feedstock production and distribution, from feedstock

generation or extraction through the distribution and

delivery and use of the finished fuel to the ultimate

consumer, where the mass values for all greenhouse

gases are adjusted to account for their relative global

warming potential.

(I)

Renewable biomass

The term “renewable biomass” means each of the following:

(i) Planted crops and crop residue harvested

from agricultural land cleared or cultivated at any

time prior to December 19, 2007, that is either actively

managed or fallow, and nonforested.

(ii) Planted trees and tree residue from actively

managed tree plantations on non-federalௗ10 land

cleared at any time prior to December 19, 2007,

4a

including land belonging to an Indian tribe or an Indian individual, that is held in trust by the United

States or subject to a restriction against alienation imposed by the United States.

(iii) Animal waste material and animal byproducts.

(iv) Slash and pre-commercial thinnings that are

from non-federalௗ10 forestlands, including forestlands

belonging to an Indian tribe or an Indian individual,

that are held in trust by the United States or subject

to a restriction against alienation imposed by the

United States, but not forests or forestlands that are

ecological communities with a global or State ranking

of critically imperiled, imperiled, or rare pursuant to a

State Natural Heritage Program, old growth forest, or

late successional forest.

(v) Biomass obtained from the immediate vicinity

of buildings and other areas regularly occupied by

people, or of public infrastructure, at risk from wildfire.

(vi) Algae.

(vii) Separated yard waste or food waste, including

recycled cooking and trap grease.

(J) Renewable fuel

The term “renewable fuel” means fuel that is produced

from renewable biomass and that is used to replace or

reduce the quantity of fossil fuel present in a transportation fuel.

(K) Small refinery

The term “small refinery” means a refinery for which

the average aggregate daily crude oil throughput for a

calendar year (as determined by dividing the aggregate throughput for the calendar year by the number

of days in the calendar year) does not exceed 75,000

barrels.

5a

(L) Transportation fuel

The term “transportation fuel” means fuel for use in

motor vehicles, motor vehicle engines, nonroad vehicles, or nonroad engines (except for ocean-going vessels).

(2) Renewable fuel program

(A) Regulations

(i) In general

Not later than 1 year after August 8, 2005, the Administrator shall promulgate regulations to ensure that

gasoline sold or introduced into commerce in the

United States (except in noncontiguous States or territories), on an annual average basis, contains the applicable volume of renewable fuel determined in accordance with subparagraph (B). Not later than 1 year

after December 19, 2007, the Administrator shall revise the regulations under this paragraph to ensure

that transportation fuel sold or introduced into commerce in the United States (except in noncontiguous

States or territories), on an annual average basis, contains at least the applicable volume of renewable fuel,

advanced biofuel, cellulosic biofuel, and biomass-based

diesel, determined in accordance with subparagraph

(B) and, in the case of any such renewable fuel produced from new facilities that commence construction

after December 19, 2007, achieves at least a 20 percent

reduction in lifecycle greenhouse gas emissions compared to baseline lifecycle greenhouse gas emissions.

(ii) Noncontiguous State opt-in

(I) In general

On the petition of a noncontiguous State or territory,

the Administrator may allow the renewable fuel program established under this subsection to apply in the

6a

noncontiguous State or territory at the same time or

any time after the Administrator promulgates regulations under this subparagraph.

(II) Other actions

In carrying out this clause, the Administrator may—

(aa) issue or revise regulations under this paragraph;

(bb) establish applicable percentages under

paragraph (3);

(cc) provide for the generation of credits under

paragraph (5); and

(dd) take such other actions as are necessary to

allow for the application of the renewable fuels program in a noncontiguous State or territory.

(iii) Provisions of regulations

Regardless of the date of promulgation, the regulations promulgated under clause (i)—

(I) shall contain compliance provisions applicable to

refineries, blenders, distributors, and importers, as

appropriate, to ensure that the requirements of this

paragraph are met; but

(II) shall not—

(aa) restrict geographic areas in which renewable fuel may be used; or

(bb) impose any per-gallon obligation for the

use of renewable fuel.

(iv) Requirement in case of failure to promulgate regulations

If the Administrator does not promulgate regulations

under clause (i), the percentage of renewable fuel in

gasoline sold or dispensed to consumers in the United

States, on a volume basis, shall be 2.78 percent for calendar year 2006.

7a

(B) Applicable volumes

(i) Calendar years after 2005

(I) Renewable fuel

For the purpose of subparagraph (A), the applicable

volume of renewable fuel for the calendar years 2006

through 2022 shall be determined in accordance with

the following table:

Calendar year: Applicable volume of renewable

௏

fuel (in billions of gallons):

௏2006

௏2007

௏2008

௏2009

௏2010

௏2011

௏2012

௏2013

௏2014

௏2015

௏2016

௏2017

௏2018

௏2019

௏2020

௏2021

௏2022

4.0

4.7

9.0

11.1

12.95

13.95

15.2

16.55

18.15

20.5

22.25

24.0

26.0

28.0

30.0

33.0

36.0

(II) Advanced biofuel

For the purpose of subparagraph (A), of the volume of

renewable fuel required under subclause (I), the

8a

applicable volume of advanced biofuel for the calendar

years 2009 through 2022 shall be determined in accordance with the following table:

Calendar Year:

௏

Applicable volume of advanced

biofuel (in billions of gallons):

0.6

0.95

1.35

2.0

2.75

3.75

5.5

7.25

9.0

11.0

13.0

15.0

18.0

21.0

௏2009

௏2010

௏2011

௏2012

௏2013

௏2014

௏2015

௏2016

௏2017

௏2018

௏2019

௏2020

௏2021

௏2022

(III) Cellulosic biofuel

For the purpose of subparagraph (A), of the volume of

advanced biofuel required under subclause (II), the

applicable volume of cellulosic biofuel for the calendar

years 2010 through 2022 shall be determined in accordance with the following table:

Calendar year:

௏

௏2010

௏2011

Applicable volume of cellulosic

biofuel (in billions of gallons):

0.1

0.25

9a

Calendar year:

௏

Applicable volume of cellulosic

biofuel (in billions of gallons):

0.5

1.0

1.75

3.0

4.25

5.5

7.0

8.5

10.5

13.5

16.0

௏2012

௏2013

௏2014

௏2015

௏2016

௏2017

௏2018

௏2019

௏2020

௏2021

௏2022

(IV) Biomass-based diesel

For the purpose of subparagraph (A), of the volume of

advanced biofuel required under subclause (II), the

applicable volume of biomass-based diesel for the calendar years 2009 through 2012 shall be determined in

accordance with the following table:

Calendar year:

௏

Applicable volume of biomassbased diesel (in billions

of gallons):

௏2009

௏2010

௏2011

௏2012

0.5

0.65

0.80

1.0

(ii) Other calendar years

For the purposes of subparagraph (A), the applicable

volumes of each fuel specified in the tables in clause (i)

10a

for calendar years after the calendar years specified in

the tables shall be determined by the Administrator,

in coordination with the Secretary of Energy and the

Secretary of Agriculture, based on a review of the implementation of the program during calendar years

specified in the tables, and an analysis of—

(I) the impact of the production and use of renewable fuels on the environment, including on air

quality, climate change, conversion of wetlands, ecosystems, wildlife habitat, water quality, and water

supply;

(II) the impact of renewable fuels on the energy

security of the United States;

(III) the expected annual rate of future commercial production of renewable fuels, including advanced biofuels in each category (cellulosic biofuel

and biomass-based diesel);

(IV) the impact of renewable fuels on the infrastructure of the United States, including deliverability of materials, goods, and products other than renewable fuel, and the sufficiency of infrastructure to

deliver and use renewable fuel;

(V) the impact of the use of renewable fuels on

the cost to consumers of transportation fuel and on

the cost to transport goods; and

(VI) the impact of the use of renewable fuels on

other factors, including job creation, the price and

supply of agricultural commodities, rural economic

development, and food prices.

The Administrator shall promulgate rules establishing the applicable volumes under this clause no later

than 14 months before the first year for which such

applicable volume will apply.

11a

(iii) Applicable volume of advanced biofuel

For the purpose of making the determinations in

clause (ii), for each calendar year, the applicable volume of advanced biofuel shall be at least the same percentage of the applicable volume of renewable fuel as

in calendar year 2022.

(iv) Applicable volume of cellulosic biofuel

For the purpose of making the determinations in

clause (ii), for each calendar year, the applicable volume of cellulosic biofuel established by the Administrator shall be based on the assumption that the Administrator will not need to issue a waiver for such

years under paragraph (7)(D).

(v) Minimum applicable volume of biomassbased diesel

For the purpose of making the determinations in

clause (ii), the applicable volume of biomass-based diesel shall not be less than the applicable volume listed

in clause (i)(IV) for calendar year 2012.

(3) Applicable percentages

(A) Provision of estimate of volumes of gasoline sales

Not later than October 31 of each of calendar years

2005 through 2021, the Administrator of the Energy

Information Administration shall provide to the Administrator of the Environmental Protection Agency

an estimate, with respect to the following calendar

year, of the volumes of transportation fuel, biomassbased diesel, and cellulosic biofuel projected to be sold

or introduced into commerce in the United States.

12a

(B) Determination of applicable percentages

(i) In general

Not later than November 30 of each of calendar years

2005 through 2021, based on the estimate provided under subparagraph (A), the Administrator of the Environmental Protection Agency shall determine and

publish in the Federal Register, with respect to the

following calendar year, the renewable fuel obligation

that ensures that the requirements of paragraph (2)

are met.

(ii) Required elements

The renewable fuel obligation determined for a calendar year under clause (i) shall—

(I) be applicable to refineries, blenders, and importers, as appropriate;

(II) be expressed in terms of a volume percentage

of transportation fuel sold or introduced into commerce in the United States; and

(III) subject to subparagraph (C)(i), consist of a

single applicable percentage that applies to all categories of persons specified in subclause (I).

(C) Adjustments

In determining the applicable percentage for a calendar year, the Administrator shall make adjustments—

(i) to prevent the imposition of redundant obligations on any person specified in subparagraph

(B)(ii)(I); and

(ii)

to account for the use of renewable fuel during the previous calendar year by small refineries that

are exempt under paragraph (9).

13a

(4) Modification of greenhouse gas reduction percentages

(A) In general

The Administrator may, in the regulations under the

last sentence of paragraph (2)(A)(i), adjust the 20 percent, 50 percent, and 60 percent reductions in lifecycle

greenhouse gas emissions specified in paragraphs

(2)(A)(i) (relating to renewable fuel), (1)(D) (relating to

biomass-based diesel), (1)(B)(i) (relating to advanced

biofuel), and (1)(E) (relating to cellulosic biofuel) to a

lower percentage. For the 50 and 60 percent reductions, the Administrator may make such an adjustment only if he determines that generally such reduction is not commercially feasible for fuels made using

a variety of feedstocks, technologies, and processes to

meet the applicable reduction.

(B) Amount of adjustment

In promulgating regulations under this paragraph,

the specified 50 percent reduction in greenhouse gas

emissions from advanced biofuel and in biomass-based

diesel may not be reduced below 40 percent. The specified 20 percent reduction in greenhouse gas emissions

from renewable fuel may not be reduced below 10 percent, and the specified 60 percent reduction in greenhouse gas emissions from cellulosic biofuel may not be

reduced below 50 percent.

(C) Adjusted reduction levels

An adjustment under this paragraph to a percent less

than the specified 20 percent greenhouse gas reduction for renewable fuel shall be the minimum possible

adjustment, and the adjusted greenhouse gas reduction shall be established by the Administrator at the

maximum achievable level, taking cost in consider-

14a

ation, for natural gas fired corn-based ethanol plants,

allowing for the use of a variety of technologies and

processes. An adjustment in the 50 or 60 percent

greenhouse gas levels shall be the minimum possible

adjustment for the fuel or fuels concerned, and the adjusted greenhouse gas reduction shall be established

at the maximum achievable level, taking cost in consideration, allowing for the use of a variety of feedstocks, technologies, and processes.

(D) 5-year review

Whenever the Administrator makes any adjustment

under this paragraph, not later than 5 years thereafter

he shall review and revise (based upon the same criteria and standards as required for the initial adjustment) the regulations establishing the adjusted level.

(E) Subsequent adjustments

After the Administrator has promulgated a final rule

under the last sentence of paragraph (2)(A)(i) with respect to the method of determining lifecycle greenhouse gas emissions, except as provided in subparagraph (D), the Administrator may not adjust the percent greenhouse gas reduction levels unless he determines that there has been a significant change in the

analytical methodology used for determining the

lifecycle greenhouse gas emissions. If he makes such

determination, he may adjust the 20, 50, or 60 percent

reduction levels through rulemaking using the criteria

and standards set forth in this paragraph.

(F) Limit on upward adjustments

If, under subparagraph (D) or (E), the Administrator

revises a percent level adjusted as provided in subparagraphs (A), (B), and (C) to a higher percent, such

higher percent may not exceed the applicable percent

15a

specified in paragraph (2)(A)(i), (1)(D), (1)(B)(i), or

(1)(E).

(G) Applicability of adjustments

If the Administrator adjusts, or revises, a percent

level referred to in this paragraph or makes a change

in the analytical methodology used for determining

the lifecycle greenhouse gas emissions, such adjustment, revision, or change (or any combination thereof)

shall only apply to renewable fuel from new facilities

that commence construction after the effective date of

such adjustment, revision, or change.

(5) Credit program

(A) In general

The regulations promulgated under paragraph (2)(A)

shall provide—

(i) for the generation of an appropriate amount of

credits by any person that refines, blends, or imports

gasoline that contains a quantity of renewable fuel

that is greater than the quantity required under paragraph (2);

(ii) for the generation of an appropriate amount of

credits for biodiesel; and

(iii) for the generation of credits by small refineries in accordance with paragraph (9)(C).

(B) Use of credits

A person that generates credits under subparagraph

(A) may use the credits, or transfer all or a portion of

the credits to another person, for the purpose of complying with paragraph (2).

16a

(C) Duration of credits

A credit generated under this paragraph shall be valid

to show compliance for the 12 months as of the date of

generation.

(D) Inability to generate or purchase sufficient

credits

The regulations promulgated under paragraph (2)(A)

shall include provisions allowing any person that is unable to generate or purchase sufficient credits to meet

the requirements of paragraph (2) to carry forward a

renewable fuel deficit on condition that the person, in

the calendar year following the year in which the renewable fuel deficit is created—

(i) achieves compliance with the renewable fuel requirement under paragraph (2); and

(ii) generates or purchases additional renewable

fuel credits to offset the renewable fuel deficit of the

previous year.

(E) Credits for additional renewable fuel

The Administrator may issue regulations providing:

(i) for the generation of an appropriate amount of credits by any person that refines, blends, or imports additional renewable fuels specified by the Administrator;

and (ii) for the use of such credits by the generator, or

the transfer of all or a portion of the credits to another

person, for the purpose of complying with paragraph

(2).

(6) Seasonal variations in renewable fuel use

(A) Study

For each of calendar years 2006 through 2012, the Administrator of the Energy Information Administration

shall conduct a study of renewable fuel blending to

17a

determine whether there are excessive seasonal variations in the use of renewable fuel.

(B) Regulation of excessive seasonal variations

If, for any calendar year, the Administrator of the Energy Information Administration, based on the study

under subparagraph (A), makes the determinations

specified in subparagraph (C), the Administrator of

the Environmental Protection Agency shall promulgate regulations to ensure that 25 percent or more of

the quantity of renewable fuel necessary to meet the

requirements of paragraph (2) is used during each of

the 2 periods specified in subparagraph (D) of each

subsequent calendar year.

(C) Determinations

The determinations referred to in subparagraph (B)

are that—

(i) less than 25 percent of the quantity of renewable fuel necessary to meet the requirements of paragraph (2) has been used during 1 of the 2 periods specified in subparagraph (D) of the calendar year;

(ii) a pattern of excessive seasonal variation described in clause (i) will continue in subsequent calendar years; and promulgating regulations or other requirements to impose a 25 percent or more seasonal

use of renewable fuels will not prevent or interfere

with the attainment of national ambient air quality

standards or significantly increase the price of motor

fuels to the consumer.

(D) Periods

The 2 periods referred to in this paragraph are—

(i) April through September; and

(ii) January through March and October through

December.

18a

(E) Exclusion

Renewable fuel blended or consumed in calendar year

2006 in a State that has received a waiver under section 7543(b) of this title shall not be included in the

study under subparagraph (A).

(F) State exemption from seasonality requirements

Notwithstanding any other provision of law, the seasonality requirement relating to renewable fuel use established by this paragraph shall not apply to any

State that has received a waiver under section 7543(b)

of this title or any State dependent on refineries in

such State for gasoline supplies.

(7) Waivers

(A) In general

The Administrator, in consultation with the Secretary

of Agriculture and the Secretary of Energy, may

waive the requirements of paragraph (2) in whole or in

part on petition by one or more States, by any person

subject to the requirements of this subsection, or by

the Administrator on his own motion by reducing the

national quantity of renewable fuel required under

paragraph (2)—

(i) based on a determination by the Administrator,

after public notice and opportunity for comment, that

implementation of the requirement would severely

harm the economy or environment of a State, a region,

or the United States; or

(ii) based on a determination by the Administrator,

after public notice and opportunity for comment, that

there is an inadequate domestic supply.

19a

(B) Petitions for waivers

The Administrator, in consultation with the Secretary

of Agriculture and the Secretary of Energy, shall approve or disapprove a petition for a waiver of the requirements of paragraph (2) within 90 days after the

date on which the petition is received by the Administrator.

(C) Termination of waivers

A waiver granted under subparagraph (A) shall terminate after 1 year, but may be renewed by the Administrator after consultation with the Secretary of Agriculture and the Secretary of Energy.

(D) Cellulosic biofuel

(i) For any calendar year for which the projected

volume of cellulosic biofuel production is less than the

minimum applicable volume established under paragraph (2)(B), as determined by the Administrator

based on the estimate provided under paragraph

(3)(A), not later than November 30 of the preceding

calendar year, the Administrator shall reduce the applicable volume of cellulosic biofuel required under

paragraph (2)(B) to the projected volume available

during that calendar year. For any calendar year in

which the Administrator makes such a reduction, the

Administrator may also reduce the applicable volume

of renewable fuel and advanced biofuels requirement

established under paragraph (2)(B) by the same or a

lesser volume.

(ii) Whenever the Administrator reduces the minimum cellulosic biofuel volume under this subparagraph, the Administrator shall make available for sale

cellulosic biofuel credits at the higher of $0.25 per gallon or the amount by which $3.00 per gallon exceeds

the average wholesale price of a gallon of gasoline in

20a

the United States. Such amounts shall be adjusted for

inflation by the Administrator for years after 2008.

(iii) Eighteen months after December 19, 2007, the

Administrator shall promulgate regulations to govern

the issuance of credits under this subparagraph. The

regulations shall set forth the method for determining

the exact price of credits in the event of a waiver. The

price of such credits shall not be changed more frequently than once each quarter. These regulations

shall include such provisions, including limiting the

credits’ uses and useful life, as the Administrator

deems appropriate to assist market liquidity and

transparency, to provide appropriate certainty for

regulated entities and renewable fuel producers, and

to limit any potential misuse of cellulosic biofuel credits to reduce the use of other renewable fuels, and for

such other purposes as the Administrator determines

will help achieve the goals of this subsection. The regulations shall limit the number of cellulosic biofuel

credits for any calendar year to the minimum applicable volume (as reduced under this subparagraph) of

cellulosic biofuel for that year.

(E) Biomass-based diesel

(i) Market evaluation

The Administrator, in consultation with the Secretary

of Energy and the Secretary of Agriculture, shall periodically evaluate the impact of the biomass-based

diesel requirements established under this paragraph

on the price of diesel fuel.

(ii) Waiver

If the Administrator determines that there is a significant renewable feedstock disruption or other market

circumstances that would make the price of biomassbased diesel fuel increase significantly, the Admin-

21a

istrator, in consultation with the Secretary of Energy

and the Secretary of Agriculture, shall issue an order

to reduce, for up to a 60-day period, the quantity of biomass-based diesel required under subparagraph (A)

by an appropriate quantity that does not exceed 15

percent of the applicable annual requirement for biomass-based diesel. For any calendar year in which the

Administrator makes a reduction under this subparagraph, the Administrator may also reduce the applicable volume of renewable fuel and advanced biofuels requirement established under paragraph (2)(B) by the

same or a lesser volume.

(iii) Extensions

If the Administrator determines that the feedstock

disruption or circumstances described in clause (ii) is

continuing beyond the 60-day period described in

clause (ii) or this clause, the Administrator, in consultation with the Secretary of Energy and the Secretary

of Agriculture, may issue an order to reduce, for up to

an additional 60-day period, the quantity of biomassbased diesel required under subparagraph (A) by an

appropriate quantity that does not exceed an additional 15 percent of the applicable annual requirement

for biomass-based diesel.

(F) Modification of applicable volumes

For any of the tables in paragraph (2)(B), if the Administrator waives—

(i) at least 20 percent of the applicable volume requirement set forth in any such table for 2 consecutive

years; or

(ii) at least 50 percent of such volume requirement

for a single year, the Administrator shall promulgate

a rule (within 1 year after issuing such waiver) that

modifies the applicable volumes set forth in the table

22a

concerned for all years following the final year to

which the waiver applies, except that no such modification in applicable volumes shall be made for any year

before 2016. In promulgating such a rule, the Administrator shall comply with the processes, criteria, and

standards set forth in paragraph (2)(B)(ii).

(8) Study and waiver for initial year of program

(A) In general

Not later than 180 days after August 8, 2005, the Secretary of Energy shall conduct for the Administrator

a study assessing whether the renewable fuel requirement under paragraph (2) will likely result in significant adverse impacts on consumers in 2006, on a national, regional, or State basis.

(B) Required evaluations

The study shall evaluate renewable fuel—

(i) supplies and prices;

(ii) blendstock supplies; and

(iii) supply and distribution system capabilities.

(C) Recommendations by the Secretary

Based on the results of the study, the Secretary of Energy shall make specific recommendations to the Administrator concerning waiver of the requirements of

paragraph (2), in whole or in part, to prevent any adverse impacts described in subparagraph (A).

(D) Waiver

(i) In general

Not later than 270 days after August 8, 2005, the Administrator shall, if and to the extent recommended by

the Secretary of Energy under subparagraph (C),

waive, in whole or in part, the renewable fuel requirement under paragraph (2) by reducing the national

23a

quantity of renewable fuel required under paragraph

(2) in calendar year 2006.

(ii) No effect on waiver authority

Clause (i) does not limit the authority of the Administrator to waive the requirements of paragraph (2) in

whole, or in part, under paragraph (7).

(9) Small refineries

(A) Temporary exemption

(i) In general

The requirements of paragraph (2) shall not apply to

small refineries until calendar year 2011.

(ii) Extension of exemption

(I) Study by Secretary of Energy

Not later than December 31, 2008, the Secretary of

Energy shall conduct for the Administrator a study to determine whether compliance with the requirements of

paragraph (2) would impose a disproportionate economic

hardship on small refineries.

(II) Extension of exemption

In the case of a small refinery that the Secretary

of Energy determines under subclause (I) would be subject to a disproportionate economic hardship if required

to comply with paragraph (2), the Administrator shall extend the exemption under clause (i) for the small refinery

for a period of not less than 2 additional years.

(B) Petitions based on disproportionate economic hardship

(i) Extension of exemption

A small refinery may at any time petition the Administrator for an extension of the exemption under

24a

subparagraph (A) for the reason of disproportionate

economic hardship.

(ii) Evaluation of petitions

In evaluating a petition under clause (i), the Administrator, in consultation with the Secretary of Energy,

shall consider the findings of the study under subparagraph (A)(ii) and other economic factors.

(iii) Deadline for action on petitions

The Administrator shall act on any petition submitted

by a small refinery for a hardship exemption not later

than 90 days after the date of receipt of the petition.

(C) Credit program

If a small refinery notifies the Administrator that the

small refinery waives the exemption under subparagraph (A), the regulations promulgated under paragraph (2)(A) shall provide for the generation of credits

by the small refinery under paragraph (5) beginning

in the calendar year following the date of notification.

(D) Opt-in for small refineries

A small refinery shall be subject to the requirements

of paragraph (2) if the small refinery notifies the Administrator that the small refinery waives the exemption under subparagraph (A).

(10) Ethanol market concentration analysis

(A) Analysis

(i) In general

Not later than 180 days after August 8, 2005, and annually thereafter, the Federal Trade Commission

shall perform a market concentration analysis of the

ethanol production industry using the HerfindahlHirschman Index to determine whether there is

25a

sufficient competition among industry participants to

avoid price-setting and other anticompetitive behavior.

(ii) Scoring

For the purpose of scoring under clause (i) using the

Herfindahl-Hirschman Index, all marketing arrangements among industry participants shall be considered.

(B) Report

Not later than December 1, 2005, and annually thereafter, the Federal Trade Commission shall submit to

Congress and the Administrator a report on the results of the market concentration analysis performed

under subparagraph (A)(i).

(11) Periodic reviews

To allow for the appropriate adjustment of the requirements described in subparagraph (B) of paragraph (2), the Administrator shall conduct periodic reviews of—

(A) existing technologies;

(B) the feasibility of achieving compliance with the

requirements; and

(C) the impacts of the requirements described in

subsection (a)(2)ௗ11 on each individual and entity described in paragraph (2).

(12) Effect on other provisions

Nothing in this subsection, or regulations issued pursuant to this subsection, shall affect or be construed to

affect the regulatory status of carbon dioxide or any

other greenhouse gas, or to expand or limit regulatory

authority regarding carbon dioxide or any other

greenhouse gas, for purposes of other provisions (including section 7475) of this chapter. The previous

26a

sentence shall not affect implementation and enforcement of this subsection.

__________________

9

So in original. The word “and” probably should appear.

10

So in original. Probably should be “non-Federal”.

11

So in original. Subsection (a) does not contain a par. (2).

***

27a

42 U.S.C. § 7607

Administrative proceedings and judicial review

…

(b) Judicial review

(1) A petition for review of action of the Administrator in

promulgating any national primary or secondary ambient

air quality standard, any emission standard or requirement under section 7412 of this title, any standard of performance or requirement under section 7411 of this title, 1

any standard under section 7521 of this title (other than a

standard required to be prescribed under section

7521(b)(1) of this title), any determination under section

7521(b)(5)1 of this title, any control or prohibition under

section 7545 of this title, any standard under section 7571

of this title, any rule issued under section 7413, 7419, or

under section 7420 of this title, or any other nationally applicable regulations promulgated, or final action taken, by

the Administrator under this chapter may be filed only in

the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator’s action

in approving or promulgating any implementation plan

under section 7410 of this title or section 7411(d) of this

title, any order under section 7411(j) of this title, under

section 7412 of this title, under section 7419 of this title, or

under section 7420 of this title, or his action under section

1857c-10(c)(2)(A), (B), or (C) of this title (as in effect before August 7, 1977) or under regulations thereunder, or

revising regulations for enhanced monitoring and compliance certification programs under section 7414(a)(3) of

this title, or any other final action of the Administrator

under this chapter (including any denial or disapproval by

the Administrator under subchapter I) which is locally or

1

So in original.

28a

regionally applicable may be filed only in the United

States Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be

filed only in the United States Court of Appeals for the

District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such

action the Administrator finds and publishes that such action is based on such a determination. Any petition for review under this subsection shall be filed within sixty days

from the date notice of such promulgation, approval, or

action appears in the Federal Register, except that if such

petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds

arise. The filing of a petition for reconsideration by the

Administrator of any otherwise final rule or action shall

not affect the finality of such rule or action for purposes

of judicial review nor extend the time within which a petition for judicial review of such rule or action under this

section may be filed, and shall not postpone the effectiveness of such rule or action.

(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall

not be subject to judicial review in civil or criminal proceedings for enforcement. Where a final decision by the

Administrator defers performance of any nondiscretionary statutory action to a later time, any per-son may challenge the deferral pursuant to paragraph (1).

***

29a

…

42 U.S.C. § 1857h-5 (1970)

Administrative proceedings and judicial review

(b) (1) A petition for review of action of the Administrator

in promulgating any national primary or secondary ambient air quality standard, any emission standard under section 1857c-7 of this title, any standard of performance under section 1857c-6 of this title, any standard under section 1857f-1 of this title (other than a standard required to

be prescribed under section 1857f-l(b)(1) of this title), any

determination under section 1857f-1(b)(5) of this title, any

control or prohibition under section 1857f-6c of this title

or any standard under section 1857f-9 of this title may be

filed only in the United States Court of Appeals for the

District of Columbia. A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857c-5 of this title or section 1857c-6(d) of this title, may be filed only in the United

States Court of Appeals for the appropriate circuit. Any

such petition shall be filed within 30 days from the date of

such promulgation or approval, or after such date if such

petition is based solely on grounds arising after such 30th

day.

(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall

not be subject to judicial review in civil or criminal proceedings for enforcement.

***

30a

42 U.S.C. § 7607 (1982)

Administrative proceedings and judicial review

…

(b) Judicial review

(1) A petition for review of action of the Administrator

in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under section 7412 of this title, any standard of

performance or requirement under section 7411 of this title, any standard under section 7521 of this title (other

than a standard required to be prescribed under section

7521(b)(l) of this title), any determination under section

7521(b)(5) of this title, any control or prohibition under

section 7545 of this title, any standard under section 7571

of this title, any rule issued under section 7413, 7419, or

under section 7420 of this title, or any other nationally applicable regulations promulgated, or final action taken, by

the Administrator under this chapter may be filed only in

the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator’s action

in approving or promulgating any implementation plan

under section 7410 of this title or section 74ll(d) of this title, any order under section 74ll(j) of this title, under section 7412(c) of this title, under section 7413(d) of this title,

under section 7419 of this title, or under section 7420 of

this title, or his action under section 1857c-10(c)(2)(A), (B),

or (C) of this title (as in effect before August 7, 1977) or

under regulations thereunder, or any other final action of

the Administrator under this chapter (including any denial or disapproval by the Administrator under subchapter I of this chapter) which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. Notwithstanding the

31a

preceding sentence a petition for review of any action referred to in such sentence may be filed only in the United

States Court of Appeals for the District of Columbia if

such action is based on a determination of nationwide

scope or effect and if in taking such action the Administrator finds and publishes that such action is based on

such a determination. Any petition for review under this

subsection shall be filed within sixty days from the date

notice of such promulgation, approval, or action appears

in the Federal Register, except that if such petition is

based solely on grounds arising after such sixtieth day,

then any petition for review under this subsection shall be

filed within sixty days after such grounds arise.

(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall

not be subject to judicial review in civil or criminal proceedings for enforcement.

***

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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